Com. v. Krebs, J.

• Court: Superior Court of Pennsylvania
• Decided: August 16, 2021
• Docket: 1578 EDA 2020
• Status: Unpublished

Opinion

J-S05035-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : JOSHUA KREBS : No. 1578 EDA 2020

Appeal from the Order Entered August 3, 2020 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0000283-2018

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED AUGUST 16, 2021

The Commonwealth appeals from the order dismissing with prejudice

the charges filed against Joshua Krebs, pursuant to Pa.R.Crim.P. 600. The

Commonwealth argues that the trial court should not have counted against it

the delay that occurred when it filed an untimely interlocutory appeal. We

affirm.

The Commonwealth filed a Complaint on December 18, 2017, charging

Krebs with violations of the Wiretap Act. See 18 Pa.C.S.A. §§ 5703-5728.

Krebs waived a preliminary hearing and, following formal arraignment, the

court scheduled a pretrial conference for May 2, 2018. Krebs moved on April

10, 2018, to extend the period for filing omnibus pretrial motions. The court

granted the motion and extended the deadline to May 2, 2018. That same

day, the court extended the pretrial motion deadline and rescheduled the J-S05035-21

pretrial conference for August 29, 2018, noting that Krebs expressly waived

the application of Rule 600 for the applicable delay.1

On August 29, 2018, at Krebs’ request, the court rescheduled the

pretrial conference to September 19, 2018. However, on the day for the

pretrial conference, the court again continued it, this time to November 21,

2018.

On October 17, 2019, Krebs sought an extension of the time for filing

omnibus pretrial motions as well as a continuance of the pretrial conference,

as he needed additional time to review discovery. The Commonwealth

concurred in the request. The court ordered that Krebs file the omnibus

pretrial motion by November 21, 2018 and rescheduled the pretrial conference

for December 12, 2018.

Krebs filed an omnibus pretrial motion on November 21, 2018. The court

canceled the pretrial conference and scheduled a hearing on the motion for

January 24, 2019. The Commonwealth filed a motion to reschedule, as its

witness was attached to a trial that week. The hearing on the motion was

rescheduled to February 28, 2019.

After the hearing on Krebs’ pretrial motion, the court gave Krebs 45

days after completion of the transcript to file a brief and gave the

Commonwealth 15 days thereafter to respond. Krebs filed his brief on time.

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1 In August 2018, the Commonwealth submitted a notice of joinder to join case 1717 CR 2018, with this case. The court did not dismiss that case under Rule 600, and it is not part of this appeal.

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The Commonwealth filed a motion for extension of time to file its brief, which

the court granted, extending the deadline to May 10, 2019. The

Commonwealth filed its brief on May 11, 2019.

The Court issued an opinion and order on July 17, 2019, granting in part

and denying in part the omnibus pretrial motions. Thirty-three days later, on

August 19, 2019, the Commonwealth filed an untimely appeal. This Court

issued a Rule to Show Cause why the appeal should not be dismissed as

untimely. The Commonwealth did not respond, and we quashed the appeal on

November 21, 2019. Commonwealth v. Krebs., No. 2523 EDA 2019. The

Commonwealth filed a petition for reconsideration, on November 25, 2019,

which we denied on December 4, 2019. We remanded the record on January

10, 2020, and the trial court scheduled a March 4, 2020 pretrial conference.

On February 6, 2020, Krebs filed a motion to dismiss pursuant to Rule

600. The court initially denied the motion, but Krebs filed a motion to

reconsider. Krebs argued that the court had erred in excusing the time from

the filing of the Complaint to the date of arraignment, and from the date of

arraignment to the originally schedule pretrial conference, as the time was

due to normal progression of the case. Motion to Reconsider, at 3-4 (citing

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

reconsideration and dismissed the charges with prejudice.2 The

Commonwealth filed this appeal. ____________________________________________

2 The court later granted Krebs’ unopposed motion to sever this case from the

case at docket 1717 CR 2018.

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The Commonwealth raises the following:

Did the Trial Court abuse its discretion by dismissing the above-captioned matter pursuant to Pa.R.Crim.P. 600 when there was evidence of record of due diligence on the part of the Commonwealth and sufficient excludable time to extend the expiration of the same?

Commonwealth’s Br. at x.

The Commonwealth argues there were 484 excludable days, making the

adjusted run date April 15, 2020, i.e., after Krebs filed his Rule 600 motion.

Commonwealth’s Br. at 10-11. It claims there were “multiple periods of

excludable time including continuances consented to by [Krebs], unavailability

of witnesses, and efforts to file[] and perfect an interlocutory appeal.” Id. at

xvi. The Commonwealth concedes that the “timely filing of a Notice of Appeal

is a critical step in perfecting the appeal,” but asserts that “the failure to do

the same does not automatically terminate the proceeding.” Id. at 6. It cites

in support Bass v. Commonwealth, 401 A.2d 1133 (Pa. 1979), and

Commonwealth v. Patterson, 940 A.2d 493 (Pa.Super. 2007). It also

contends that “the mere existence of human error does not negate due

diligence.” Commonwealth’s Br. at 7 (quoting Commonwealth v. Bradford,

46 A.3d 693, 698 (Pa. 2012)).

It also attempts to distinguish Commonwealth v. Malinowski, 671

A.2d 674, 678 (Pa. 1996). The Commonwealth argues that here, unlike in

Malinowski, it included a certification pursuant to Pa.R.A.P. 311(d) and it did

not voluntarily withdraw the appeal. Rather, it maintains it “diligently

attempted to litigate the matter and pursue the appeal by filing for

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reconsideration.” Commonwealth’s Br. at 7. It states it did not engage in

“misconduct or attempts to circumvent Rule 600,” and claims it did not

respond to this Court’s Rule to Show Cause because “the same was

erroneously not known to the Commonwealth and the Commonwealth

believed the appeal was proceeding through its normal course having received

the October 15, 2019, Briefing Schedule.” Id. at 8, 9. It claims that when it

received the order quashing the appeal, it “promptly” requested

reconsideration “due to counsel having been in preparation for a homicide

trial.” Id. at 9. Then, soon after the record was returned, the “Commonwealth

petitioned the [t]rial [c]ourt to schedule a [s]tatus [c]onference.” Id.

We review an order granting or denying a Rule 600 motion for an abuse

of discretion. See Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super.

2015). In determining if there was such an abuse, we view the facts in the

light most favorable to the prevailing party. Id. Our scope of review is limited

to the trial court's findings and the evidence of record from the Rule 600

proceeding, which we view in the light most favorable to the prevailing party.

Commonwealth v. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018).

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, taking into account periods of delay in which

the Commonwealth exercised due diligence in bringing the defendant to trial,

as well as delay the defendant caused, the defendant may move to dismiss

the charges. Pa.R.Crim.P. 600(D)(1).

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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 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 the defendant’s whereabouts

were 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 did not occur before 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. 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.

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The Commonwealth must demonstrate by a preponderance of the

evidence that it exercised due diligence. Bradford, 46 A.3d at 701. 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.” Id. at 701-02 (quoting

Commonwealth v. Selenski, 994 A.2d 1083,1089 (Pa. 2010)). If the court

determines the Commonwealth did not act with due diligence, the court must

dismiss the charges and discharge the defendant. Id. at 702.

Certainly, the “Commonwealth’s good-faith interlocutory appeal

constitute[s] excusable delay under Rule 600, even if the Commonwealth was

unsuccessful on the merits of its claim.” Commonwealth v. Risoldi, 238

A.3d 434, 452 (Pa.Super. 2020). Nonetheless, the Commonwealth’s duties

under Rule 600 extend throughout all stages of a case, Commonwealth v.

Hawk, 597 A.2d 1141, 1145 (Pa. 1991), and require it to act with reasonable

diligence pursuing an interlocutory appeal by right. See Commonwealth v.

Matis, 710 A.2d 12 (Pa. 1998). Thus, if the Commonwealth unreasonably fails

to take proper steps to invoke this Court’s jurisdiction in such an appeal, the

delay incurred counts against the Commonwealth. See Malinowski, 671 A.2d

at 678.

Unless otherwise provided by law, a notice of appeal must be filed within

30 days after the entry of the order from which the appeal is taken, or the

appellate court lacks jurisdiction. Pa.R.A.P. 903(a); Commonwealth v.

Gaines, 127 A.3d 15, 17 (Pa.Super. 2015) (en banc). When calculating the

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deadline, the time “shall be so computed as to exclude the first and include

the last day of such period.” 1 Pa.C.S.A. § 1908; Pa.R.Crim.P. 101(C) (“To the

extent practicable, these rules shall be construed in consonance with the rules

of statutory construction”).

The dispute in this appeal centers on the Commonwealth’s contention

that the trial court erred in concluding that it did not exercise due diligence

when it filed the untimely appeal.3, 4 The Commonwealth agrees that, if the

delay the late appeal caused was excusable, the adjusted run date had not

run at the time of the Rule 600 motion, but if it was not excusable, the

adjusted run date had expired. See Commonwealth Br. at 10-11 (claiming

there were 484 excludable days, with an April 2020 adjusted run date,

including the more than 100 days the case was on appeal).

Here, the trial court found the Commonwealth did not act with

reasonable diligence during the appeal:

First, the circumstances that led to the untimely appeal were not outside the Commonwealth’s control, as excuse of time requires. The Commonwealth acted on its own discretion ____________________________________________

3 The trial court calculated the delay from the appeal as 147 days. The Commonwealth in effect concedes that the time from the rule to show cause to the motion to reconsider is not excusable. See Commonwealth’s Br. at 11 (arguing 101 days of the appeal time – from the filing of the appeal to the filing of the order to show cause, from the motion to reconsider to the denial of the motion, and from the denial until the return of the record – is excusable).

4 The Commonwealth’s calculations differed from the trial court by one day.

The Commonwealth appears to have included the first day, which, pursuant to the rules of construction, is not correct. See 1 Pa.C.S.A. § 1908; Pa.R.Crim.P. 101(C); Rule 600, comments.

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when it appealed our Order. The Commonwealth could have observed the time remaining to file an appeal when it chose to do so. This alone prevents the delay from being excused. See [Commonwealth v.] Hunt, 858 A.2d [1234,] 1241 [Pa.Super. 2004] (excusable time requires diligence under circumstances beyond Commonwealth's control); Pa. R. Crim. P. 600(C)(1).

As to the separate diligence condition required to excuse time, no case has dealt with facts like those now presented. But under Rule 600 in general, prosecutors have a duty to keep themselves informed of the time remaining before trial must commence. See, e.g., Commonwealth v. Sloan, 67 A.3d 1249 (Pa. Super. 2013) (district attorneys have non- delegable duty to monitor the timely progression of the case); Commonwealth v. Payton, 673 A.2d 631 (Pa. Super. 1996) (diligence requires informing oneself that a deadline is approaching and taking appropriate actions). Unnecessarily allowing a trial to be scheduled after the run date has been deemed a breach of diligence. See Commonwealth v. Johnson, 852 A.2d 315 (Pa. Super. 2004); Commonwealth v. Lewis, 804 A.2d 672 (Pa. Super. 2002). The same due diligence that requires monitoring of the time remaining for trial should also require the monitoring of the time to file an appeal.

In one case, the Commonwealth failed to diligently prosecute when it filed an appeal the Superior Court did not have jurisdiction to hear. Commonwealth v. Malinowski, 671 A.2d 674 (Pa. 1996) (Commonwealth purported to appeal interlocutory order granting suppression motion without certifying that it would substantially impair the prosecution). Not taking that step deprived the higher court of jurisdiction, and an untimely Notice of Appeal does the same, requiring automatic dismissal. Commonwealth v. Patterson, 940 A.2d 493 (Pa. Super. 2007) (untimely Notice of Appeal requires dismissal absent extraordinary circumstances not applicable here). In either situation, we have an appeal the reviewing court cannot decide on the merits. Where the appeal cannot be decided and merely awaits a dismissal, the appellant has not used the time to bring the case closer to trial. This goes against diligence. See Commonwealth v. Dixon, 140 A.3d 718 (Pa. Super. 2016) ("Commonwealth must do everything reasonable within its power to guarantee that a trial begins on time").

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Filing the untimely appeal in this case was not a circumstance beyond the Commonwealth’s control and is similar to unnecessarily allowing trial to be scheduled beyond the Rule 600 period. Similarly, the Commonwealth cannot diligently pursue an appeal the reviewing court does not have the jurisdiction to hear, as this will not advance the case toward trial. This means the Commonwealth has failed to prove that it exercised due diligence during this part of the case, and we cannot excuse the time.

Trial Court Opinion, filed July 2, 2020, at 10-12 (footnote omitted).

The court did not abuse its discretion. A Rule 311 certification is not the

sole requirement for this Court to have jurisdiction over the Commonwealth’s

interlocutory appeal. Rather, the Commonwealth must also file a timely notice

of appeal. Here, the Commonwealth’s appeal of the order addressing the

pretrial motion was untimely, and it has not asserted any excuse for missing

the deadline other than its failure to calculate the correct due date.

Further, after filing the untimely appeal, we issued a Rule to Show

Cause, allowing the Commonwealth a chance to convince us that the appeal

was timely. The Commonwealth failed to respond. The Commonwealth claims

that it was “unaware”5 that we had issued the Rule, but offers no explanation;

indeed, our Prothonotary sent the prosecutor handling the appeal notice by

email. That this Court also issued a briefing schedule, which did not purport

5 Com. Br. at xiv.

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to dispose of the Rule to Show Cause, did not relieve the Commonwealth of

its obligation to respond.6

The Commonwealth’s citations to Bass and Patterson are inapposite.

Bass was a case in which the Supreme Court found a non-negligent failure to

take a timely appeal was excusable. 401 A.2d at 1135. Here, the

Commonwealth has not proffered a non-negligent excuse for the untimely

appeal. In Patterson this Court concluded that the trial court’s failure when

it denied the defendant’s untimely post-sentence motion to advise defendant

of the time for filing an appeal constituted a “breakdown” in court operations

that excused untimely filing of the appeal. 940 A.2d at 499. The

Commonwealth has not identified any similar “breakdown” in this case. The

trial court did not abuse its discretion dismissing the charges pursuant to Rule

600.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/16/2021

6 Further, in its Motion for Reconsideration of our quashing of the appeal, the

Commonwealth argued that its appeal was, in fact, timely. It was not. Thirty days from July 17, 2019 was Friday, August 16, 2019.

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