Com. v. Marnoch, K.

• Court: Superior Court of Pennsylvania
• Decided: April 29, 2024
• Docket: 517 EDA 2023
• Status: Unpublished

Opinion

J-A04003-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KRISTIN MARNOCH : No. 517 EDA 2023

Appeal from the Order Entered January 25, 2023 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0006597-2022

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED APRIL 29, 2024

The Commonwealth of Pennsylvania appeals from the January 25, 2023

order granting Appellee Kristin Marnoch’s (“Appellee”) motion to dismiss

pursuant to the prompt trial rule under Pa.R.Crim.P. 1013. Upon review, we

reverse and remand.

On October 2, 2019, Appellee was arrested and charged with two counts

of driving under the influence of a drug or combination of drugs (“DUI”) and

one count of driving while operating privileges are suspended or revoked. On

April 27, 2022, after the issuance and service of multiple bench warrants,

Appellee was found guilty of DUI in Philadelphia Municipal Court, and the

Commonwealth withdrew the charge of driving under suspension. On

September 6, 2022, Appellee was sentenced to one to two years of

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* Retired Senior Judge assigned to the Superior Court. J-A04003-24

incarceration. On September 13, 2022, Appellee filed a timely de novo appeal

to the Court of Common Pleas of Philadelphia County pursuant to Pa.R.Crim.P.

1006.1 The case was scheduled for a first listing on October 24, 2022.

The Commonwealth filed an information on October 5, 2022, which

included the previously withdrawn charge of driving under suspension. On

October 13, 2022, Appellee filed an omnibus pretrial motion to suppress

evidence.2 Though not indicated on the docket, the trial court held a pretrial

conference on October 24, 2022, wherein Appellee’s counsel informed the

Commonwealth that the information was incorrect because it included the

previously withdrawn charge. See N.T., 1/25/23, at 5. Thereafter, the trial

court scheduled a waiver trial for January 25, 2023.

Prior to the trial date, on January 13, 2023, Appellee filed a motion to

quash the information and a petition to dismiss due to a violation of her speedy

trial rights pursuant to Pa.R.Crim.P. 1013(g) because more than 120 days had

elapsed since the filing of the de novo appeal. See Petition to Dismiss,

1/13/23, at 2 (unpaginated). She argued that the Commonwealth did not act

with due diligence because it failed to correct its information to remove the

previously withdrawn charge. Id. at 3-4 (unpaginated).

1 Rule 1006 provides, “Immediately after imposition of sentence, the judge

shall inform the defendant in the case of a trial and verdict of guilty of the right . . . to appeal de novo within 30 days without costs.” Pa.R.Crim.P. 1006(A)(1)(a).

2 The record is silent as to whether Appellee’s motion to suppress was heard

by the trial court.

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Following argument on January 25, 2023, the trial court granted

Appellee’s motion and dismissed all charges. This appeal followed. Both the

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

Commonwealth raises a single issue for our review:

Did the lower court err by dismissing all charges under Rule 1013, where the Commonwealth was ready for trial within 120 days of [Appellee] filing a de novo appeal in the Philadelphia Court of Common Pleas, and where [Appellee] was not brought to trial before the mechanical run date only because the [trial] court had scheduled trial beyond the mechanical run date?

Commonwealth’s Brief at 4.

Our standard of review for evaluating claims brought pursuant to

Pa.R.Crim.P. 1013 is the same as claims made under Pa.R.Crim.P. 600.

Commonwealth v. Preston, 904 A.2d 1, 9 (Pa. Super. 2006) (en banc),

appeal denied, 916 A.2d 632 (Pa. 2007). We review speedy trial rulings for

an abuse of discretion. Id. “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 . . . discretion is abused.” Commonwealth

v. Burno, 154 A.3d 764, 793 (Pa. 2017) (internal citation omitted). We view

the facts in the light most favorable to the prevailing party, and our scope of

review is limited to the hearing record. Preston, 904 A.2d at 9.

Rule 1013 protects an individual’s right to a speedy trial in Philadelphia

Municipal Court and provides that “[a] trial de novo in the Court of Common

Pleas shall commence within a period of 120 days after the notice of appeal

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from the Municipal Court is filed. In all other respects the provisions of

Rule 600 shall apply to such trials in the Court of Common Pleas.”

Pa.R.Crim.P. 1013(G) (emphasis added). “[P]eriods 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. Any other periods of delay shall be

excluded from the computation.” Pa.R.Crim.P. 600(C)(1). In ruling on a Rule

600 motion,

a trial court must first determine whether the Commonwealth has met its obligation to act with due diligence throughout the life of the case; if the Commonwealth meets its burden of proving due diligence, only then may the trial court rely upon its own congested calendar or other scheduling problems as justification for denying the defendant’s motion. Otherwise, the due diligence component of Rule 600 “would have little, if any, meaningful import.” [Commonwealth v. Mills, 162 A.3d 323,] 327 (Wecht, J., concurring).

Commonwealth v. Harth, 252 A.3d 600, 618 (Pa. 2021).

Due diligence is fact-specific and determined on a case-by-case basis.

See Commonwealth v. Claffey, 80 A.3d 780, 786 (Pa. Super. 2013), appeal

denied, 86 A.3d 231 (Pa. 2014). Due diligence “requires the Commonwealth

to put forth a reasonable effort but does not demand perfect vigilance or

punctilious care.” Id.

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

diligence in correcting the information:

[T]he Commonwealth failed to bring Appellee to trial before the adjusted run-date passed. Appellee filed a de novo appeal on

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September 13, 2022, which triggered the mechanical run-date of January 11, 2023. Appellee never caused a single delay throughout the entirety of the case, so there is no “excludable time.” The trial date was scheduled for January 25, 2023, and under Harth, 14 days beyond the mechanical run-date would not run afoul of Rule 1013(G) timing requirements if the Commonwealth can prove due diligence throughout the life of the case. Since Appellee’s case was not tried within the required timeframe under 1013(G), a due diligence analysis of the Commonwealth is necessary to determine whether Appellee must be discharged.

The Commonwealth failed to meet its burden in demonstrating due diligence throughout the entirety of the case because it failed to file [] accurate Bills of Information within 120 days of Appellee filing an appeal. At the pretrial conference, the Commonwealth testified to the additional charge on the Bills of Information as “essentially a type-o,” however, an amendment was never made by the Commonwealth. There exists a duty by the Commonwealth to make such amendments however simple the task may be, which further solidifies the Commonwealth’s failure in taking reasonable efforts to prosecute the case.

Trial Court Opinion, 5/2/23, at 4-5. While the trial court correctly set forth

the applicable law, we disagree with its application to this case.

Appellee was initially charged with two counts of DUI, ungraded

misdemeanors, and a summary offense of driving under a suspended license.

Prior to her trial in Philadelphia Municipal Court, the Commonwealth withdrew

the summary offense. See Commonwealth’s Brief at 5-6. Appellee was found

guilty of DUI and filed a de novo appeal on September 13, 2022, which

triggered the mechanical run date of January 11, 2023.

When a de novo appeal is filed, the Commonwealth “shall prepare an

information and the matter shall thereafter be treated in the same manner

as any other court case.” Pa.R.Crim.P. 1010(A)(2) (emphasis added). The

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Commonwealth and the trial court mistakenly believed that if a charge is

withdrawn it cannot be subsequently reinstated. This is an incorrect

understanding of the law.

Here, the summary offense was voluntarily withdrawn by the

Commonwealth, and not dismissed. “Since the withdrawal acted as neither

an acquittal nor a conviction, double jeopardy did not attach to the citations

that were withdrawn.” Commonwealth v. Rose, 820 A.2d 164, 168 (Pa.

Super. 2003). This Court in Rose found that even though the parties entered

into a plea agreement to withdraw certain charges, appellant had a right to

appeal from the district judge. Id. “However, since the charges were not

dismissed but withdrawn, the Commonwealth also had a right to reinstate

those charges at the summary appeal trial.” Id.

The same is true here. The Commonwealth voluntarily withdrew the

summary offense. Appellee was convicted of DUI and filed a de novo appeal,

which is her right. As a result, the Commonwealth also had a right to reinstate

the summary offense of driving under suspension. See id. Further, there is

no indication that the failure to “correct” the information delayed the trial in

any way. At most, it was a ministerial act that could have been done at any

time without delaying trial as it did not prejudice Appellee. Thus, the trial

court abused its discretion in finding that the Commonwealth failed to act with

due diligence that caused delay to the trial in this case.

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Returning to the merits, Rule 600(C) provides3 that time in which the

Commonwealth failed to exercise due diligence is to be included in the

computation of time in which trial is to commence; all other periods of delay

are to be excluded. We previously stated that the mechanical run date was

January 11, 2023, and that the trial court scheduled Appellee’s waiver trial for

January 25, 2023. The trial date exceeded the mechanical run date of January

11, 2023 by 14 days. The record indicates that the Commonwealth was

always ready to proceed after the de novo appeal was filed and was even

prepared to proceed to trial on January 25, 2023. See N.T., 1/25/23, at 8.

The trial court’s calendar is the only reason that this case was scheduled

beyond the mechanical run date; therefore, there was no delay attributable

to the Commonwealth that was to be included in the time in which trial was

to be commenced, i.e. time to be added to the mechanical run date. See

Commonwealth v. Mills, 162 A.3d 323, 325 (Pa. 2017) (“[W]here a trial-

ready prosecutor must wait several months due to a court calendar, the time

should be treated as “delay” for which the Commonwealth is not

3 Prior to 2013, Rule 600(C) and (G), were written to exclude time attributable

to defendant’s delay and to times when the Commonwealth exercised due diligence. Post 2013, subsection (C) was rewritten, and subdivision (G) was repealed. The rule now simply provides in subdivision (C) that all periods of time in which the Commonwealth has not proceeded with due diligence is to be included in the time which trial is to commence, and that all other periods of delay are to be excluded. While the result on timeliness might be the same pre and post 2013, the change in focus under the rule appears to require a different computational methodology.

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accountable”). Therefore, the trial court abused its discretion when it granted

Appellee’s motion to dismiss.

Order reversed. Jurisdiction relinquished. Case remanded for further

proceedings consistent with this memorandum.

Date: 4/29/2024

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