Commonwealth v. Harth, K., Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: June 22, 2021
• Docket: 13 EAP 2020
• Status: Published

Opinion

[J-102-2020] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 13 EAP 2020 : Appellee : Appeal from the Judgment of the : Superior Court entered on October : 16, 2019 at No. 683 EDA 2017 v. : vacating and remanding the : Judgment of Sentence entered on : February 3, 2017 in the Court of KHALID M. HARTH, : Common Pleas of Philadelphia : County, Criminal Division, at No. Appellant : CP-51-CR-0002122-2015. : : ARGUED: December 1, 2020

OPINION

JUSTICE TODD DECIDED: June 22, 2021 In this appeal by allowance, we consider whether a trial court may rely upon its

own unavailability as justification for denying a defendant’s motion to dismiss pursuant to

the speedy trial provisions of Pa.R.Crim.P. 600, without first requiring the Commonwealth

to demonstrate that it acted with due diligence in prosecuting the defendant’s case. For

the reasons that follow, we find that a trial court may invoke “judicial delay” in order to

deny a defendant’s Rule 600 motion to dismiss only after the Commonwealth has

demonstrated that it complied with the due diligence requirements of Rule 600 at all

relevant periods throughout the life of the case. Thus, we reverse the order of the

Superior Court, reverse Appellant’s judgment of sentence, and discharge him.

On January 22, 2015, the Commonwealth filed complaints against Appellant Khalid

M. Harth and co-defendant Darren Brown in connection with their involvement in a home invasion and armed robbery 11 days prior. Thereafter, on February 24, 2015, a grand

jury indicted Appellant on multiple counts of, inter alia, robbery, burglary, conspiracy to

commit robbery, and conspiracy to commit burglary.

Relevant to the instant appeal, on April 7, 2015, the trial court held a scheduling

conference at which it slated Appellant’s trial for September 28, 2015, and ordered the

Commonwealth to produce discovery by June 22, 2015. In its docket entry related to the

scheduling conference, the court noted: “Defense needs videos, FBI extract, 2010

video[s], discovery for DC-14-15-05913[,] and color photo[s.]” Criminal Docket in

Commonwealth v. Harth, No. CP-51-CR-0002122-2015 (hereinafter “Criminal Docket”),

at 7 (unpaginated). Additionally, the court documented that the “Commonwealth has no

medical records,” and it scheduled a conference for June 22, 2015, to address the status

of discovery. Id. According to a docket entry from June 22, 2015, however, the

Commonwealth was not ready to produce Indicting Grand Jury (“IGJ”) discovery at that

time. Thus, the court listed the case for a discovery status conference on July 28, 2015,

but maintained the September 28, 2015 trial date.

Thereafter, the Commonwealth requested a continuance for disclosing discovery,

which the court granted on July 28, 2015, directing the Commonwealth to produce IGJ

discovery by July 30, 2015. Pertinently, on July 30, 2015, the trial court rescheduled

Appellant’s trial for December 14, 2015, in light of the Pope’s impending visit to

Philadelphia in September 2015; the associated docket entry provides, in relevant part:

“09/28/15 date is blocked, POPE’S VISIT.”1 Id. at 9.

1 Several similar docket entries from July 30, 2015 denote that September 24, 2015 was

likewise blocked due to the Pope’s visit, as the trial court had previously scheduled a trial readiness conference for that date.

[J-102-2020] - 2 The Commonwealth subsequently filed another motion for continuance, which the

trial court granted on August 21, 2015, without explanation, and rescheduled Appellant’s

trial for January 11, 2016, noting in a docket entry that “IGJ discovery [needed] to be

passed.”2 Id. Yet, by order dated December 29, 2015, the trial court rescheduled

Appellant’s trial for January 25, 2016, again providing no explanation. Thereafter,

because counsel for Appellant’s co-defendant was scheduled for trial in an unrelated

matter on January 25, 2016, and the Commonwealth refused to sever the defendants’

cases, the trial court again rescheduled the trial for May 23, 2016. Id. at 11.

On his scheduled trial date of May 23, 2016, Appellant filed a motion to dismiss

pursuant to Pa.R.Crim.P. 600,3 asserting that the Commonwealth failed to exercise due

2 The lower courts refer to “passing” discovery, terminology we view as synonymous with

disclosing discovery to the defense. 3 Rule 600 provides, in relevant part:

(A) Commencement of Trial; Time for Trial (1) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere. (2) Trial shall commence within the following time periods. (a) Trial in a court case in which a written complaint is filed against the defendant shall commence within 365 days from the date on which the complaint is filed. *** (C) Computation of Time (1) For purposes of paragraph (A), 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. Any other periods of delay shall be excluded from the computation. ***

[J-102-2020] - 3 diligence in prosecuting his case, in light of its failure to turn over discovery which

remained outstanding at that time. On that date and the two ensuing days, the trial court

presided over a trial in an unrelated case; thus, it continued Appellant’s trial, but refrained

from setting a new date. Instead, the court scheduled a hearing on Appellant’s Rule 600

motion for June 2, 2016, and noted that it would reschedule his trial thereafter. Notably,

the relevant docket entries reflect that “[a]dditional [d]iscovery [was] outstanding” as of

(3)(a) When a judge or issuing authority grants or denies a continuance:

(i) the issuing authority shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance; and

(ii) the judge shall record the identity of the party requesting the continuance and the reasons for granting or denying the continuance. The judge also shall record to which party the period of delay caused by the continuance shall be attributed, and whether the time will be included in or excluded from the computation of the time within which trial must commence in accordance with this rule.

(b) The determination of the judge or issuing authority is subject to review as provided in paragraph (D)(3).

(D) Remedies

(1) When a defendant has not been brought to trial within the time periods set forth in paragraph (A), at any time before trial, the defendant’s attorney, or the defendant if unrepresented, may file a written motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated. A copy of the motion shall be served on the attorney for the Commonwealth concurrently with filing. The judge shall conduct a hearing on the motion.

Pa.R.Crim.P. 600.

[J-102-2020] - 4 May 23 and 24, Criminal Docket at 12, and that, on May 25, 2016, “[a]udio discovery

[was] passed at the bar of the [c]ourt,” id. at 13.

On June 2, 2016, the trial court presided over the scheduled hearing on Appellant’s

Rule 600 motion, and rescheduled his trial for November 28, 2016. At the hearing,

Appellant’s counsel argued that the Commonwealth had failed to exercise due diligence

in prosecuting the case because it did not disclose relevant discovery, including three

disks worth of police records, several police documents, and property receipts, in a timely

manner. N.T. Rule 600 Hearing, 6/2/16, at 3-5. Relatedly, counsel asserted that the

Commonwealth had not been ready to proceed to trial in January 2016 when it refused

to sever Appellant’s case from Brown’s, given that it had not theretofore provided

“extremely important discovery” to the defense. Id. at 6. Counsel also contended that

the defense team learned that outstanding discovery existed only because counsel

coincidentally overheard a conversation in the courthouse hallways between detectives.

Assistant District Attorney (“ADA”) Matthew Gehrke, who was reassigned as the

prosecutor on Appellant’s case shortly before the Rule 600 hearing, 4 countered that

Appellant’s counsel failed to notify him that they had not been provided with certain

discoverable items. See id. at 7. ADA Gehrke also argued that the Commonwealth’s

refusal to sever Appellant’s case from Brown’s was not indicative of a lack of due

diligence, and highlighted that the case was originally scheduled for trial in September

2015, but was relisted for January 2016 in light of the Pope’s visit to Philadelphia. Thus,

ADA Gehrke asserted that that period of time was excludable under Rule 600, and not

4 According to the docket, ADA Gehrke’s first appearance on behalf of the Commonwealth

in this case was on May 23, 2016. See Criminal Docket at 12. Prior to ADA Gehrke’s reassignment, ADA Marcus Washington headed the prosecution; his final appearance, according to the docket, was on January 25, 2016. See id. at 11.

[J-102-2020] - 5 attributable to the Commonwealth. According to ADA Gehrke, Appellant’s trial was “well

within the speedy trial” rule. Id. at 8.

On June 22, 2016, the court denied Appellant’s motion, reasoning:

The period from when the first complaint was filed on or about January 22[,] 2015, and the current date is a total of approximately 516 or [5]17 days and subtracting −− or roughly speaking, 369 days of excusable or extendable time, there are a total of 147 days attributable to the Commonwealth, more or less, and this is within the limit of 365 days, and [Appellant] has not shown that the Commonwealth did not exercise due diligence, and therefore the motion to dismiss is denied. N.T. Hearing, 6/22/16, at 6. Notably, Appellant’s counsel sought clarification from the

court as to the impact of the Commonwealth’s failure to fulfill its discovery obligation,

resulting in the following exchange:

[Appellant’s counsel]: Thank you, Your Honor. Just for the record, so it’s my understanding that . . . you are considering the fact that the [c]ourt was on trial and not considering the fact that discovery was not complete?

[Trial court]: Well, it doesn’t matter to me. If the [c]ourt’s on trial, the [c]ourt’s on trial. I can’t hold that against the Commonwealth. That’s considered extendable time.

[Appellant’s counsel]: Right, but discovery wasn’t complete, and you’re saying that that’s not included?

[Trial court]: Well, I took it into consideration, but like I said, what’s just as dispositive to me is the fact that I -- I’m not going to get into -- locked into a response. I’m taking that into consideration, the fact that I couldn’t have done the case if I wanted to. So that’s a big factor that I’m looking at. Id. at 6-7.

The case proceeded to trial on November 28, 2016.5 However, on that morning,

the Commonwealth presented the defense with a discovery packet, which included 15

5 On the date of trial, co-defendant Brown entered a guilty plea.

[J-102-2020] - 6 exhibits that the defense claimed were previously undisclosed. Hence, Appellant’s

counsel tendered a second motion to dismiss pursuant to Rule 600(A), arguing that the

Commonwealth failed to exercise due diligence, as it neglected to share discoverable

evidence with the defense, despite having such evidence in its possession since early in

the case. The parties briefly discussed the record of outstanding discovery, as well as

each party’s respective intent to utilize the items disclosed that morning in the course of

the trial. Thereafter, the trial court indicated that it would take Appellant’s motion under

advisement, and asked the Commonwealth for a final response to the motion. The

Commonwealth responded: “I mean, Your Honor, frankly, you already denied the motion.

There hasn’t been a change of circumstance. The last continuance was not on the

Commonwealth. So it was denied.” N.T. Trial, 11/28/16, at 24. The Commonwealth

provided no explanation with respect to its failure to disclose discovery throughout the life

of the case or, more specifically, regarding its failure to provide the defense with the 15

new exhibits which triggered Appellant’s second Rule 600 motion on the morning of trial.

The following day, the trial court denied Appellant’s second Rule 600 motion,

incorporating by reference the findings it had previously rendered, and reiterating its prior

reasoning. See N.T. Trial, 11/29/16, at 23. The court also explained that, in its view,

Appellant “ha[d] not shown that the Commonwealth did not exercise due diligence,” id.,

and noted that, in any event, even if the Commonwealth was not ready to proceed, it was

not “going to hold the Commonwealth responsible,” as the court was engaged in other

matters which precluded it from holding Appellant’s trial at an earlier date, id. at 24.

Ultimately, Appellant’s jury trial proceeded, spanning November 30, 2016 through

December 2, 2016, on which date the jury convicted him of robbery, burglary, and related

offenses. He was sentenced to an aggregate term of 8 to 16 years imprisonment,

followed by 6 years probation, plus restitution.

[J-102-2020] - 7 Appellant filed a timely notice of appeal with the Superior Court, asserting, inter

alia, that the trial court erred in denying his Rule 600 motions because his trial

commenced more than a year after the Commonwealth filed its criminal complaint. In

that regard, Appellant maintained that the trial court incorrectly calculated the number of

days which amounted to excusable time; that the Commonwealth’s delay in disclosing

discovery was not excusable; and that discovery was outstanding on the scheduled trial

date in May 2016, and remained so in November 2016, when the Commonwealth

provided the defense with discovery on the morning of trial.

In its opinion filed pursuant to Pa.R.A.P. 1925(a), the trial court defended its denial

of Appellant’s Rule 600 motions, opining that “the Commonwealth established by a

preponderance of the evidence that it did exercise due diligence.” Trial Court Opinion,

12/13/17, at 9. Without further addressing the matter of due diligence, the court explained

that it deducted 369 days of excusable or extendable time from the 516 total days that

passed between the initial filing of the complaint on January 22, 2015, and its denial of

Appellant’s second Rule 600 motion on November 29, 2016, leaving only 147 days of

delay attributable to the Commonwealth.6 More specifically, the trial court stated that the

initial period from January 22, 2015 to the April 7, 2015 scheduling conference and the

period from April 7, 2015 through September 28, 2015 were “excusable because the

delay was beyond the Commonwealth’s control and there was no evidence of its lack of

due diligence;” that the time between January 26, 2016 and May 23, 2016 “was not

excludable because the Appellant’s counsel was ready for trial;” and that “[t]he remaining

11-day period between May 23, 2016 and the 600(A) dismissal hearing was ruled

extendable[,] as the court was on trial on another matter.” Id. at 10 (emphasis added).

6 The trial court appears to have incorrectly employed January 11, 2015 as the beginning

date for purposes of time computation, though the complaint was not filed until 11 days later, on January 22, 2015.

[J-102-2020] - 8 Thus, the trial court concluded that the Commonwealth complied with Rule 600 and that

Appellant’s claim to the contrary lacked merit.

In a unanimous, unpublished memorandum opinion, a three-judge panel of the

Superior Court vacated Appellant’s judgment of sentence and remanded.

Commonwealth v. Harth, 683 EDA 2017 (Pa. Super. filed Oct. 16, 2019). As an initial

matter, the Superior Court noted that, because the Commonwealth filed the complaint

against Appellant on January 22, 2015, the “mechanical run date” was January 22, 2016.7

The court then observed that, on June 22, 2015, the original due date for producing

discovery, the trial court granted the Commonwealth an extension until July 28, 2015, and

another extension to July 30, 2015. The Superior Court, thus, reasoned that the

Commonwealth was not ready to disclose discovery on those dates, such that the delay

from June 22, 2015 to July 30, 2015 did not amount to excludable or excusable delay.

The Superior Court next found that the trial court’s rescheduling of the trial from

September 28, 2015 to December 14, 2015, due to the Pope’s visit to Philadelphia, was

beyond the Commonwealth’s control; nevertheless, in the court’s view, the record was

unclear as to whether that 77-day period constituted excusable delay, in light of the trial

court’s failure to render a determination with respect to the Commonwealth’s due

diligence in complying with its discovery obligations. Similarly, the Superior Court

observed that the trial court twice rescheduled trial, without explanation, first moving it to

January 11, 2016, then to January 25, 2016, for a total delay of 42 days. The court found

that, in both instances, the record lacked any indication of the Commonwealth’s readiness

to proceed to trial, and, moreover, demonstrated that “the Commonwealth had still not

7 The phrase “mechanical run date” refers to “the date by which the trial must commence

pursuant to the time limitations set forth in Rule 600.” Commonwealth v. Solano, 906 A.2d 1180, 1188 n.8 (Pa. 2006). The mechanical run date “is calculated by adding 365 days to the date on which the criminal complaint was filed.” Id.

[J-102-2020] - 9 passed discovery to Appellant as of December 2015 and January 2016.” Id. at 26

(citations omitted). Again, the court concluded that it, therefore, could not determine

whether that period of time was excusable.

The Superior Court also expressed uncertainty with respect to whether the 118-

day delay from January 25, 2016 to May 23, 2016, which stemmed from the unavailability

of co-defendant Brown’s counsel and the Commonwealth’s refusal to sever Appellant’s

case, constituted excusable delay. Indeed, the court noted that, while the record once

more revealed that the Commonwealth had yet to complete discovery during that

timeframe, the trial court neglected to make a due diligence determination regarding the

Commonwealth’s failure in that respect. The Superior Court likewise observed that the

delay from May 23, 2016 to May 25, 2016 — though beyond the Commonwealth’s control

— occurred when discovery remained outstanding, as evinced by the fact that the

Commonwealth provided audio discovery to the defense on May 25. Additionally, the

court found that the record failed to illuminate whether the Commonwealth was ready to

proceed to trial on June 2, 2016 and June 22, 2016, or the reason the trial court

rescheduled Appellant’s trial for November 28, 2016, more than five months later. The

Superior Court reasoned that, during that time period, the Commonwealth had seemingly

neglected to fulfil its discovery obligations, as it later provided Appellant with 15 new

documents on the morning of trial in November 2016. The court nonetheless concluded

that it was unable to discern whether the 187-day period from June 22, 2016 to November

28, 2016 amounted to excusable delay, given that the trial court neglected to assess the

Commonwealth’s due diligence in its efforts to provide discovery to the defense.

Ultimately, the Superior Court declared that it was “unable to calculate the adjusted

run date for Appellant’s trial,” opining that the record was “inconsistent, at best.” Id. at 30.

In this vein, the court emphasized that the trial court “conducted no due diligence analysis

[J-102-2020] - 10 with respect to whether the Commonwealth had met its discovery obligations throughout

the case,” and that it failed to determine when the Commonwealth was legitimately

prepared for trial to commence. Id. at 31. In light of the perceived shortcomings of the

record in that regard, the Superior Court remanded the case to the trial court to conduct

a hearing to clarify the record with respect to: the cause for every continuance; the

Commonwealth’s readiness for trial throughout the life of the case; and the

Commonwealth’s due diligence, or lack thereof. Id. (citing Commonwealth v. Selenski,

994 A.2d 1083, 1089 (Pa. 2010) (stating that, where the Superior Court determined that

the trial court misconstrued Rule 600 and failed to focus upon the Commonwealth’s due

diligence, “the proper action would have been a remand to the trial court to determine

whether the Commonwealth exercised due diligence pursuant to Rule 600”)).

Furthermore, the court directed the trial court to place the burden of proof on the

Commonwealth — namely, by requiring the Commonwealth to demonstrate that it acted

with due diligence — given that the trial court repeatedly placed the burden on Appellant

in addressing his motions.

Appellant subsequently filed a petition for allowance of appeal, and we granted

review on the following issue:

Was the Superior Court’s order to remand for a new hearing on the Commonwealth’s due diligence in error, insofar as it contradicts precedent and impermissibly gives the Commonwealth a second chance to prove diligence, when the Commonwealth had a full and fair opportunity to do so and failed to meet its burden? Commonwealth v. Harth, 235 A.3d 275 (Pa. 2020) (order).

Before us, Appellant asserts that the Superior Court erred in remanding the case

to the trial court for a new Rule 600 hearing, rather than vacating his conviction and

discharging him. Appellant argues that the Superior Court’s actions in that regard

compounded the trial court’s failure to render judgment with respect to the issue of the

[J-102-2020] - 11 Commonwealth’s due diligence and its decision to, instead, rely upon its own congested

schedule as justification for denying Appellant’s Rule 600 motions. Indeed, Appellant

emphasizes that, despite the defense’s enduring position that the Commonwealth failed

to exercise due diligence in prosecuting the case and in fulfilling its discovery obligations

— and Appellant’s attorneys’ strenuous and repeated arguments in support of that stance

at both Rule 600 hearings — the Commonwealth failed to offer any evidence related to

its due diligence. While Appellant lauds the Superior Court’s acknowledgement that the

trial court misapprehended the burden of proof in reviewing the Commonwealth’s due

diligence, he maintains that, by predominantly focusing upon the erroneous standard

employed by the trial court, the Superior Court overlooked the Commonwealth’s failure to

offer any evidence whatsoever in relation to the question of due diligence. Thus, in

essence, Appellant suggests that the Superior Court’s decision to remand provides the

Commonwealth an unwarranted third chance to meet its burden of proving due diligence.

Moreover, according to Appellant, the record is not only devoid of evidence that

the Commonwealth acted with due diligence, but is also brimming with proof that the

Commonwealth failed to disclose discovery in a timely manner. Specifically, Appellant

maintains that the available evidence, including the docket entries and the transcripts

from the Rule 600 hearings, readily establishes that the Commonwealth had not yet fully

disclosed discovery in September 2015; had likewise not fulfilled its discovery obligations

as of December 2015 and January 2016; had not completed discovery through May 2016;

and only finished providing discovery to the defense in November 2016, when, on the

morning of trial, it produced 15 new documents. Appellant contends that, in addition to

making no effort to prove due diligence, ADA Gehrke admitted that he was unaware of

what discovery had been disclosed to the defense prior to the case being reassigned to

him, revealing that he made no effort to discern as much. Appellant submits that “[t]he

[J-102-2020] - 12 Superior Court’s opinion reflects the clear evidence on the record that the Commonwealth

failed to turn over mandatory discovery until the eve of trial, several months past the Rule

600 deadline.” Appellant’s Brief at 15.

Appellant next avers that the Superior Court’s reliance on Selenski, supra, in

remanding this case for further consideration was misplaced because, therein, “‘[n]either

the parties nor the [trial] court referenced due diligence at argument on the appellant’s

motion to dismiss’” — circumstances which led this Court to conclude that “‘the proper

action would have been a remand to the trial court to determine whether the

Commonwealth exercised due diligence pursuant to Rule 600.’”8 Id. at 18 (quoting

Selenski, 994 A.2d at 1089). Hence, in Appellant’s view, the failure of any party in

Selenski to raise due diligence was the determinative factor on which our Court relied in

finding that remand was justified. Conversely, here, Appellant stresses that, at both Rule

600 hearings, his counsel vociferously argued that the Commonwealth failed to act with

due diligence throughout the case, but the Commonwealth nevertheless neglected to

address that issue. Appellant contends that the Commonwealth’s failure to provide

evidence of its due diligence at either hearing, coupled with “the trial court’s failure to

resolve an issue squarely presented to it,” does not entitle the Commonwealth to a third

opportunity to meet its burden of proof. Id. at 19.

Appellant suggests that the outcome here should, instead, be guided by our

decision in Commonwealth v. Akridge, 422 A.2d 487 (Pa. 1980) (per curiam), wherein we

reversed the Superior Court’s order remanding for an evidentiary hearing on the question

of whether, at two prior hearings, the Commonwealth had established due diligence under

Pa.R.Crim.P. 1100 — the precursor to Rule 600. While acknowledging that Akridge is a

8 As discussed in further detail infra, in Selenski, we ultimately declined to remand the

case and reviewed the due diligence matter de novo, in the interest of judicial economy. See Selenski, 994 A.2d at 1089 n.7.

[J-102-2020] - 13 non-binding per curiam decision, Appellant nonetheless observes that, therein, we found

that “a ‘second bite’ of the Commonwealth’s evidentiary burden on the ‘due diligence’

requirement of Rule 1100 [was] in contradiction to the mandates we set forth in

Commonwealth v. Ehredt, [401 A.2d 358 (Pa. 1979)].” Akridge, 422 A.2d at 487.

Appellant proffers that Ehredt supports the notion that remand is inappropriate where the

Commonwealth fails to offer evidence of its due diligence in the first instance, noting that

we cautioned in that case that the Commonwealth may not meet its burden of proof by

way of bald assertions. See Ehredt, 401 A.2d at 360-61.9

Finally, Appellant asks us to clarify the proper standard for disposing of Rule 600

motions, and the proper order in which the trial courts should consider the issues

implicated in a motion to dismiss pursuant to Rule 600, by adopting the reasoning and

procedure espoused by Justice Wecht in his concurring opinion in Commonwealth v.

Mills, 162 A.3d 323 (Pa. 2017).10 Indeed, in Appellant’s view, Justice Wecht properly

9 In urging us to find Akridge and Ehredt controlling and remand unnecessary, Appellant

also relies upon two probation violation cases, Commonwealth v. Mullins, 918 A.2d 82 (Pa. 2007), and Commonwealth v. Foster, 214 A.3d 1240 (Pa. 2019). Specifically, Appellant highlights that, in Mullins, we found that a remand for a new probation violation hearing was proper, in light of a procedural anomaly whereby evidence of the defendant’s probation violation was noted, but not properly entered on the record. By contrast, Appellant explains that, in Foster, no such procedural anomaly existed, and the Commonwealth merely failed to meet its evidentiary burden; Appellant asserts that this difference allowed our Court in Foster to reject the Commonwealth’s request for a remand to present further evidence because it failed to do so in the first instance. Appellant maintains that, here, the circumstances comport with Foster, rather than Mullins, given the Commonwealth’s blatant failure to present any evidence of its due diligence, thus rendering remand improper. In light of our disposition, however, we need not address this aspect of Appellant’s argument, as we are able to reach a conclusion based solely upon Rule 600 jurisprudence. 10 We issued our decision in Mills on June 20, 2017 − after the trial court’s denial of

Appellant’s two Rule 600 motions, but nearly two years prior to the Superior Court’s disposition below. Notably, this author and Justice Donohue joined Justice Wecht’s concurring opinion in Mills.

[J-102-2020] - 14 reasoned therein that “due diligence must be proven by the Commonwealth, and

assessed by the court, before ‘judicial delay’ becomes a consideration in the time

calculation for Rule 600.” Appellant’s Brief at 24 (quoting Mills, 162 A.3d at 326 (Wecht,

J., concurring)). Appellant asserts that, here, consistent with Justice Wecht’s

methodology, the trial court was required to assess the Commonwealth’s due diligence

before relying upon its own scheduling issues as a basis for denying Appellant’s motions

to dismiss. Id. at 25.11

Appellant maintains that the process delineated in the Mills concurrence comports

with the language of Rule 600 and the comment thereto, as well as Rule 600

jurisprudence. Indeed, in that latter regard, Appellant contends that, “[w]hile prior cases

have addressed the concept of ‘judicial delay’ and have held that such delay will not

prompt dismissal of charges under Rule 600, all of those cases have been premised upon

a finding that the Commonwealth had been diligent.” Id. at 25-26 (citing Commonwealth

v. Maglieri, 889 A.2d 604, 607 (Pa. Super. 2005) (“It is long-established that judicial delay

may serve as a basis for extending the period of time within which the Commonwealth

may commence trial where ‘the Commonwealth is prepared to commence trial prior to the

expiration of the mandatory period but the court[,] because of scheduling difficulties or the

like[,] is unavailable.’” (quoting Commonwealth v. Shelton, 364 A.2d 694, 699 (Pa.

1976))); see also Mills, 162 A.3d at 325 (“[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 accountable. Here, however, the Commonwealth does not

argue that it was prepared for trial during the 174 days at issue.”). Moreover, Appellant

argues that permitting the Commonwealth to evade its Rule 600 obligations by citing to

11 Pertinently, Appellant highlights that he advocated before the Superior Court that the

Mills concurrence set forth the appropriate standard, although the court declined to address that contention.

[J-102-2020] - 15 the trial court’s busy schedule, without proving that it was nevertheless prepared to

proceed, would deprive the due diligence component of the rule of meaning. Appellant’s

Brief at 26 (citing Mills, 162 A.3d at 326-27 (Wecht, J., concurring)). As such, Appellant

implores us to “promote the more efficient resolution of Rule 600 motions by explicitly

adopting the paradigm outlined in Justice Wecht’s concurring opinion in Mills,” thereby

providing “clear guidance” to the lower courts and ensuring that the Commonwealth “is

held accountable for its obligation to diligently bring defendants to trial in a timely fashion,”

while continuing to protect the Commonwealth from unjustifiable discharge of a case

where it has acted diligently. Id. at 27.

The Commonwealth counters that the Superior Court correctly remanded the case,

given the trial court’s failure to make the necessary due diligence determinations at the

hearings on Appellant’s Rule 600 motions. The Commonwealth likens the instant matter

to Selenski, claiming that, in both cases, the trial court “‘los[t] sight of the rule’s

overarching principles and thus fore[went] a Rule 600 due diligence analysis.’”

Commonwealth’s Brief at 11 (quoting Selenski, 994 A.2d at 1089) (alterations original).

However, in the Commonwealth’s view, this Court’s de novo review in the interest of

judicial economy would be improper here as compared to Selenski. On that point, the

Commonwealth contends that the issue of due diligence cannot be evaluated based on

the current record, maintaining that the indications on the docket that it had not fully

disclosed discovery at various points throughout the life of the case are not a sufficient

basis on which to render a due diligence determination. The Commonwealth further

claims that, because a grand jury was involved in the initiation of this case, any delay

related to discovery of grand jury material would not have constituted a lack of due

diligence unless it was within 60 days of the start of trial, pursuant to Phila.Crim.R. *556.2

(delineating the process for cases in Philadelphia County initiated by an IGJ, including

[J-102-2020] - 16 the scheduling process whereby the trial court holds a status conference 60 days prior to

trial, at which IGJ material is turned over to the defense only if both parties are prepared

to proceed to trial). Thus, the Commonwealth contends that remand is necessary to

clarify which items of discovery were outstanding and which, if any, were IGJ material.

The Commonwealth similarly avers that the record requires clarification regarding

whether the outstanding discovery was mandatory or non-mandatory in nature.

The Commonwealth next argues that, “under Rule 600, outstanding discovery only

leads to includable time if the lack of discovery caused a delay.” Commonwealth’s Brief

at 13 (emphasis original) (citing Pa.R.Crim.P. 600(C)(1) (mandating that “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”); Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999) (“A

delay caused by the Commonwealth’s lack of due diligence will not constitute excludable

time.”)). Therefore, according to the Commonwealth, a remand is needed to allow the

trial court to determine whether the Commonwealth’s failure to produce the outstanding

discovery amounted to a lack of due diligence, and, if so, whether its failure to produce

discovery was the direct cause of delay. Additionally, the Commonwealth asserts that

the Superior Court’s remand was appropriate because the Rule 600 hearings at issue

occurred prior to our decision in Mills. The Commonwealth claims that the trial court

should be afforded the opportunity, with the benefit of this Court’s guidance in Mills, to

“‘differentiate between time necessary to ordinary trial preparation and judicial delay

arising out of the court’s own scheduling concerns.’” Id. at 15 (quoting Mills, 162 A.3d at

325).

The Commonwealth also complains that discharge of the case would have been

unfair, in light of the trial court’s commentary indicating that it did not matter whether

[J-102-2020] - 17 discovery was complete and that it would not hold its own unavailability against the

Commonwealth in ruling on Appellant’s Rule 600 motion. See N.T. Hearing, 6/22/16, at

6-7. The Commonwealth maintains that,

[a]fter the [trial] court explained that it did not need to consider any potential discovery issues (which may have implicated the Commonwealth’s due diligence) with respect to periods of judicial delay, the prosecutor had no reason to delve into the specific discovery outstanding during those times and the reason it was outstanding. Commonwealth’s Brief at 16. In any event, the Commonwealth avers that it provided the

trial court with written calculations of Rule 600 time at the June 2, 2016 hearing, and

argued that the defense failed to tender a discovery request with respect to certain items

or to alert the newly-assigned prosecutor, ADA Gehrke, that it had not been previously

provided with such discovery.

Relatedly, the Commonwealth contends that the trial court sought to expedite the

June 2, 2016 hearing, further undercutting its ability to provide evidence pertaining to due

diligence. According to the Commonwealth, the trial court’s failure to ask specific

questions about discovery, and the fact that it declined an offer by the defense to make

copies of discovery letters or other evidence, were products of the trial court’s use of an

improper standard in reviewing Appellant’s motion. The Commonwealth posits that, if the

trial court had been operating under the correct standard, it “would not have truncated the

hearing and would have delved into when specific pieces of discovery were outstanding

and why, and whether the discovery issues in fact caused the trial to be delayed.” Id. at

17. In this regard, the Commonwealth suggests that what, in its view, amounts to an

incomplete record is the result of the trial court’s deficiencies, rather than its own.

Turning to Appellant’s second Rule 600 motion, the Commonwealth claims that it

was essentially blindsided by the defense’s argument that it had not been previously

provided with certain items included in the discovery packet on the morning of the

[J-102-2020] - 18 scheduled trial. The Commonwealth contends that it had no notice of the defense’s intent

to raise a second Rule 600 issue, and thus “had no opportunity to find out more

information about the discovery,” such as what items were disclosed by the prosecutor

who was originally assigned to the case. Id. at 18. As a result, the Commonwealth

asserts that it was deprived of a full and fair opportunity to prove its due diligence.

Next, the Commonwealth disputes Appellant’s contention that Akridge, supra, is

instructive, highlighting that Akridge is a per curiam order with no precedential value. See

Commonwealth v. Thompson, 985 A.2d 928, 937 (Pa. 2009) (“This Court has made it

clear that per curiam orders have no stare decisis effect.”). The Commonwealth avers

that it would have been improper for the Superior Court to rely upon Akridge whilst

ignoring Selenski. In any case, the Commonwealth suggests that Akridge is

distinguishable from the case sub judice, as evinced by the Superior Court’s reasoning in

that decision. See Commonwealth v. Akridge, 419 A.2d 18 (Pa. Super. 1980), rev’d, 422

A.2d 487 (Pa. 1980). Indeed, the Commonwealth explains that the Superior Court in

Akridge remanded for further evidentiary proceedings “[b]ecause no evidence was

presented,” and the court was, therefore, “unable to assess the merits” of the

Commonwealth’s form petition filed under former Rule 1100; notably, rather than present

evidence before the trial court, the Commonwealth had merely complained that a witness

was not available and a police officer was ill. Id. at 21. The Commonwealth proffers that

we then overturned the Superior Court’s remand order, noting that it would have been

tantamount to allowing the Commonwealth a second opportunity to present evidence

relative to its assertions that a witness was unavailable and an officer was ill. The

Commonwealth reasons that, here, to the contrary, the Superior Court ordered a remand

because the trial court failed to undertake a due diligence analysis — not because the

Commonwealth failed to present evidence. According to the Commonwealth, “[t]he

[J-102-2020] - 19 remand in Akridge solely provided the Commonwealth with a second chance to meet its

obligations, whereas here the remand was to direct the trial court to apply the proper legal

analysis in making its Rule 600 decision.”12 Commonwealth’s Brief at 21.

Finally, the Commonwealth contends that Appellant’s request for us to adopt the

view espoused by Justice Wecht in his concurring opinion in Mills is beyond the scope of

this appeal. In this vein, the Commonwealth claims that the question which our Court

accepted for review merely required the parties to address “whether the Superior Court

appropriately ordered a remand,” positing that the question “does not involve review of

the Superior Court’s decision that the trial court misapplied Rule 600 or consideration of

the way . . . the trial court evaluated due diligence.” Id. at 22-23. The Commonwealth

also avers that Appellant has failed to clearly explicate the actions which he desires us to

undertake, as well as the extent to which adoption of the Mills concurrence would

legitimately impact the outcome of this matter. In the Commonwealth’s view, the plain

language of Rule 600, even if read in conjunction with the Mills concurrence, requires the

trial court to consider the cause of a delay before assessing the Commonwealth’s due

diligence. Essentially, the Commonwealth argues that the Mills concurrence is immaterial

to this matter, and, therefore, urges us to reject Appellant’s invitation that we formally

adopt it.

As an initial matter, we reject the Commonwealth’s contention that Appellant’s

invitation for us to adopt the Mills concurrence as the appropriate construction of Rule

600(C)(1) is beyond the scope of this appeal. Although the Superior Court did not address

the propriety of the standard articulated in the Mills concurrence — namely, that “due

12 The Commonwealth likewise views Ehredt as distinguishable, again noting that, therein, the trial court was not deemed to have applied an incorrect standard or to have conducted an incomplete analysis in ruling on a motion for continuance under former Rule 1100. The Commonwealth reiterates that, in its view, Selenski provides the appropriate framework for this case.

[J-102-2020] - 20 diligence must be proven by the Commonwealth, and assessed by the court, before

‘judicial delay’ becomes a consideration in the time calculation for Rule 600,” Mills, 162

A.3d at 326 (Wecht, J., concurring) — the briefs submitted below reveal that Appellant

indeed argued that the Commonwealth must prove its due diligence even if delay is

attributable to the trial court’s schedule, see Appellant’s Brief in Harth, 683 EDA 2017, at

22-26; Appellant’s Reply Brief in Harth, 683 EDA 2017, at 7, while the Commonwealth

ardently maintained that the Mills concurrence was inapposite and, in any event, not

binding, see Commonwealth’s Brief in Harth, 683 EDA 2017, at 15 n.8. Moreover, in

seeking allowance of appeal, Appellant argued that the Mills concurrence correctly

summarized the Commonwealth’s obligations with respect to proving due diligence

despite periods of judicial delay, see Petition for Allowance of Appeal at 21, and sought

for us to “clarify that the Commonwealth must, any time the deadlines under Rule 600

have been violated, prove that it has been duly diligent in attempting to meet all its

obligations and bringing the defendant to trial in a timely manner,” id. at 22.

Hence, consideration of the standard enunciated by Justice Wecht in Mills is not

beyond the scope of our grant of allocatur, and Appellant’s request for us to consider

formal adoption of that standard is fairly encompassed by the question pending before

us. We will address that aspect of the appeal first.13

As we have previously explained, this Court adopted Rule 600, and its

predecessor, in response to the United States Supreme Court’s decision in Barker v.

Wingo, 407 U.S. 514, 530 (1972) (endorsing a balancing test to determine whether a

defendant’s constitutional right to a speedy trial under the Sixth Amendment to the United

13 While, in general, we review a trial court’s denial of a Rule 600 motion for an abuse of

discretion, see Commonwealth v. Burno, 154 A.3d 764, 793 (Pa. 2017), where, as here, the dispositive question implicates legal issues, our review is plenary, Mills, 162 A.3d at 325.

[J-102-2020] - 21 States Constitution has been violated). See Commonwealth v. Bradford, 46 A.3d 693,

700 (Pa. 2012). Specifically, the high Court promulgated a four-part test to be employed

by courts in determining whether a particular defendant was deprived of his right to a

speedy trial, under which a court is required to consider the length of the delay involved,

the reason for such delay, the defendant’s assertion of his or her right, and the prejudice

to the defendant. Barker, 407 U.S. at 530. While the high Court declined to prescribe a

definitive period of time in which defendants must be brought to trial, it nonetheless

explained that the States were entitled to impose “a reasonable period consistent with

constitutional standards” via legislation or rulemaking. Id. at 523.

In light of the Supreme Court’s decision in Barker, this Court found it prudent “to

formulate a rule of criminal procedure fixing a maximum time limit in which individuals

accused of a crime shall be brought to trial,” reflecting the dual purposes of “more

effectively protect[ing] the right of criminal defendants to a speedy trial,” and the efficient

administration of justice. Commonwealth v. Hamilton, 297 A.2d 127, 133 (Pa. 1972).

Accordingly, we adopted Rule 1100, subsequently renumbered Rule 600.

As noted above, the most recent version of Rule 600, which went into effect on

July 1, 2013, provides that “[t]rial in a court case in which a written complaint is filed

against the defendant shall commence within 365 days from the date on which the

complaint is filed.” Pa.R.Crim.P. 600(A)(2)(a). Further, “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,” while “[a]ny other periods of delay shall be excluded from the

computation.” Pa.R.Crim.P. 600(C)(1). A defendant who has not been brought to trial

within the time specified in Rule 600(A) may, at any time prior to trial, “file a written motion

requesting that the charges be dismissed with prejudice on the ground that [the] rule has

[J-102-2020] - 22 been violated.” Pa.R.Crim.P. 600(D)(1). If the trial court determines that the

Commonwealth violated Rule 600, it shall dismiss the charges and discharge the

defendant. See Burno, 154 A.3d at 793.

In Mills, supra, we examined the meaning of “delay” in the computational

instructions in Rule 600(C), as revised in 2013. Therein, the Commonwealth filed a

criminal complaint against the appellant on June 6, 2011, charging him with multiple

offenses. At a status conference held on September 27, 2011, the trial court initially slated

the appellant’s trial to begin on April 2, 2012, but, following a second status conference

on March 20, 2012, trial was continued per the Commonwealth’s request. Mills, 162 A.3d

at 324. Notably, in seeking the continuance, a prosecutor informed the trial court “that

the Commonwealth was not yet in a position to provide complete discovery, the assigned

assistant district attorney had a planned vacation on the then-scheduled trial date, and

DNA testing of genetic material from [the appellant] was contemplated.” Id. Thus, the

trial court rescheduled the appellant’s trial for September 10, 2012. After his trial was

again continued, the appellant filed a Rule 600 motion to dismiss, which the trial court

ultimately granted.

The Commonwealth appealed the trial court’s decision, and, before the Superior

Court, the parties primarily focused upon the propriety of the trial court’s inclusion of the

174-day period from September 27, 2011 to March 20, 2012 in its computation of Rule

600 time. Specifically, the Commonwealth asserted that such time was excludable and

should not have been attributed to it, essentially contending that the revisions to Rule

600(C) “radically alter[ed] the primary directive that trial is to commence within 365 days,”

and that “the instructions afford the prosecution leeway to proceed, without any diligence,

to cause up to 365 days of delay in the commencement of any trial.” Id. For his part, the

appellant claimed that the Commonwealth’s construction of the rule rendered it

[J-102-2020] - 23 ineffectual, maintaining that our Court never intended, in revising the rule, “to effectively

toll the 365-day period throughout all periods of ordinary trial preparation.” Id. (citation

omitted). The Superior Court accepted the Commonwealth’s position, and reversed the

trial court’s dismissal. See Commonwealth v. Mills, 929 EDA 2014, 2016 WL 104533

(Pa. Super. filed Jan. 8, 2016).

On appeal, we rejected the construction of Rule 600(C) adopted by the Superior

Court, instead determining that “time attributable to the normal progression of a case

simply is not ‘delay’ for purposes of Rule 600.” Mills, 162 A.3d at 325 (citing

Commonwealth v. Morgan, 398 A.2d 972, 975 (Pa. 1972) (“[A]ny occurrences between

the filing of the complaint and the commencement of the trial which did not affect the time

in which the trial was commenced[ ] is . . . not properly considered as a ‘delay in the

proceedings[.]’”)). In so doing, we noted that trial courts retain the discretion “to

differentiate between time necessary [for] ordinary trial preparation and judicial delay

arising out of the court’s own scheduling concerns,” such that, “where 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 accountable.” Id. (emphasis added).

Accordingly, we reasoned that, because the Commonwealth had not argued that it was

prepared for trial during the time period at issue, the trial court properly included that time

in its Rule 600 calculation; thus, we reversed the Superior Court’s order and remanded

for reinstatement of the trial court’s dismissal order. Id.

As previously noted, Justice Wecht authored a concurring opinion, in which he

addressed the concept of “judicial delay,” astutely observing that, in distinguishing

between time which passes in the normal course of a criminal case and time which

elapses due to a court’s burdensome calendar, “our trial courts too often make these

[J-102-2020] - 24 judgments without first considering the Commonwealth’s due diligence obligation.” Id. at

326 (Wecht, J., concurring). Indeed, Justice Wecht reasoned:

Characterization and delineation of the contested time periods is not always an easy task. Difficulty can arise, as it did in this case, when both “judicial delay” and the Commonwealth’s due diligence obligation appear as options for the court. However, these two options are not equal, to be selected at the court’s discretion. Nor can “judicial delay” be substituted for due diligence. Rather, due diligence must be proven by the Commonwealth, and assessed by the court, before “judicial delay” becomes a consideration in the time calculation for Rule 600. Id. Justice Wecht further opined that, notwithstanding the inherent ambiguity of the term

“delay” evidenced by the parties’ competing interpretations thereof, “a linear reading of

[Rule 600] requires courts first to consider the Commonwealth’s role in causing the delay

at issue,” and only after the Commonwealth proves that it acted with due diligence

throughout the case should a court consider other causes for delay in bringing a

defendant to trial. Id. Moreover, Justice Wecht explained that his view in this regard

comports with the comment to Rule 600, which states that subsection (C)(1) “makes it

clear that any delay in the commencement of the trial that is not attributable to the

Commonwealth when the Commonwealth has acted with due diligence must be excluded

from the computation of time.” Pa.R.Crim.P. 600, cmt. (emphasis added). Thus, Justice

Wecht concluded that, in computing time pursuant to Rule 600(C)(1), “‘[j]udicial delay’

becomes relevant only after the Commonwealth has proven its compliance with the due

diligence mandate.” Mills, 162 A.3d at 327 (Wecht, J., concurring).

Presently, we find that the methodology enunciated by Justice Wecht in Mills

encapsulates Rule 600’s dual purpose of protecting defendants’ constitutional right to a

speedy trial and society’s countervailing right to effective prosecution of criminal cases,

Commonwealth v. Barbour, 189 A.3d 944, 955 (Pa. 2018), while simultaneously ensuring

[J-102-2020] - 25 that the Commonwealth is “held to the requirement that it exercise due diligence at all

times during the pendency of a case,” Commonwealth v. Hawk, 597 A.2d 1141, 1145 (Pa.

1991). Furthermore, bearing in mind that we must, to the extent possible, construe our

Rules of Criminal Procedure in accordance with the rules of statutory construction,

Commonwealth v. Far, 46 A.3d 709, 912 (Pa. 2012), we agree with Justice Wecht that

requiring the Commonwealth to demonstrate that it acted with due diligence before a trial

court excludes time from its Rule 600 time computation on the basis of “judicial delay”

comports with the language of Rule 600(C)(1) and its commentary, the purpose behind

the rule, and our prior jurisprudence interpreting Rule 600 and its predecessor.

Indeed, the text of Rule 600(C)(1) requires that “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.” Pa.R.Crim.P. 600(C)(1) (emphasis added). Although not a model of

clarity, and certainly the dissent has a different view, we find this language expressly calls

upon a trial court to assess the Commonwealth’s due diligence throughout the life of a

case, when faced with a claim that the Commonwealth violated a defendant’s speedy trial

rights. Notably, every iteration of our speedy trial rule has encompassed a similar

requirement.

Moreover, as we have previously explained, we may consult the explanatory

comment of the committee which worked on the rule in determining the proper

construction and application thereof. Commonwealth v. Lockridge, 810 A.2d 1191, 1195

(Pa. 2002). Pertinently in this regard, the comment to Rule 600 notes that “the inquiry for

a judge in determining whether there is a violation of the time periods in paragraph (A) is

whether the delay is caused solely by the Commonwealth when the Commonwealth has

failed to exercise due diligence.” Pa.R.Crim.P. 600, cmt. (citations omitted). However,

[J-102-2020] - 26 the comment clarifies that, “[i]f the delay occurred as the result of circumstances beyond

the Commonwealth’s control and despite its due diligence, the time is excluded.” Id.

(emphasis added) (citing Commonwealth v. Browne, 584 A.2d 902 (1990);

Commonwealth v. Genovese, 425 A.2d 367 (Pa. 1981)). Thus, the Commonwealth is

required to demonstrate that it acted with due diligence during a time period before that

period can be deemed excludable.14 In this vein, the revised language of Rule 600(C)(1)

was plainly not intended to eviscerate the Commonwealth’s longstanding duty to proceed

with diligence in prosecuting criminal cases. See Mills, 162 A.3d at 325 (declining to

adopt an interpretation of the amended rule which would have afforded the

Commonwealth additional leeway in prosecuting cases, as such a construction “is not

borne out in any of this Court’s decisions” and is “inconsistent with both the letter and

spirit of Rule 600”).

Relatedly, the construction of Rule 600(C)(1) espoused in the Mills concurrence

and championed by Appellant is also harmonious with our prior jurisprudence interpreting

Rule 600 and its predecessor. See, e.g., Barbour, 189 A.3d at 947 (“Absent a

demonstration of due diligence, establishing that the Commonwealth has done everything

reasonable within its power to guarantee that [the] trial begins on time, the

Commonwealth’s failure to bring the defendant to trial before the expiration of the Rule

600 time period constitutes grounds for dismissal of the charges with prejudice.” (citation,

quotation marks, and internal citation omitted; brackets original)); Burno, 154 A.3d at 793-

14 The dissent relies upon the portion of the comment to Rule 600 which states that delay

attributable to the judiciary “may be excluded from the computation of time.” See Dissenting Opinion (Dougherty, J), at 4 (quoting Pa.R.Crim.P. 600, cmt.). However, the commentary’s use of the term “may,” in our view, evinces the need for a court to further assess the circumstances of that delay, including the Commonwealth’s preparedness for trial, prior to deeming such time excludable. That view is harmonious with the commentary propounding that delay which occurred outside of the Commonwealth’s control and “despite its due diligence” is excluded. See Pa.R.Crim.P. 600, cmt.

[J-102-2020] - 27 94 (noting that, generally, “delays in bringing a capital defendant to trial that result from

appellate resolution of pretrial motion rulings” is considered excusable time not attributed

to the Commonwealth in Rule 600 time computations, “so long as the Commonwealth

acted with due diligence at all relevant times”); Hill, 736 A.2d at 587 (“If a delay is created,

in order to establish that the delay is excludable, the Commonwealth must demonstrate,

by a preponderance of the evidence, that it exercised due diligence in opposing or

responding to the pretrial motion.”); Hawk, 597 A.2d at 1145 (“[W]e find that the

Commonwealth should be held to the requirement that it exercise due diligence at all

times during the pendency of a case.”).

Accordingly, we hold that, in ruling on a defendant’s Rule 600 motion to dismiss, 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.” Mills, 162 A.3d at 327 (Wecht, J., concurring).15

15 The hypothetical scenario posited by the dissent — in which a 100-day period of delay

attributable to the judiciary remains excludable if the Commonwealth was not prepared to proceed to trial on day one of the judicial delay — is misleading. See Dissenting Opinion (Dougherty, J.), at 10. Specifically, the dissent overlooks the fact that, under Rule 600, the Commonwealth has 365 days from the initiation of a criminal case in which to bring a defendant to trial. We do not suggest that the Commonwealth must be prepared to proceed to trial the moment that a criminal case is initiated; rather, the Commonwealth must utilize that year to prepare itself for trial, as is required under Rule 600(A). We have not altered that timeline, but, instead, seek merely to ensure that the Commonwealth does not summarily rely upon the judiciary as an excuse to forego preparation for pending criminal cases, consistent with the language and purpose of Rule 600. Indeed, under the dissent’s approach, were the judiciary unable to proceed with a trial within the first year after a case was initiated, the Commonwealth could do nothing during that delay, and then take another year to prepare its case.

[J-102-2020] - 28 Turning to the facts presently before us, we find that, because Appellant’s trial

commenced on November 28, 2016, nearly two years after the Commonwealth filed the

complaint against him on January 22, 2015, Rule 600’s speedy trial provision is

unquestionably implicated. Moreover, it is beyond dispute that the trial court failed to

meaningfully address the Commonwealth’s due diligence in its disposition of Appellant’s

Rule 600 motions. See Trial Court Opinion, 12/13/17, at 9; N.T. Hearing, 6/22/16, at 6-8;

N.T. Trial, 11/29/16, at 21-24. Likewise, to Appellant’s detriment, the trial court

demonstrably erred in repeatedly transferring the burden of proving the absence of due

diligence onto Appellant. See N.T. Hearing, 6/22/16, at 6; N.T. Trial, 11/29/16, at 23.

Thus, having determined that trial courts must assess the Commonwealth’s due diligence

before relying upon their own scheduling difficulties and congested court calendars as

justification for denying Rule 600 motions to dismiss, we must now examine whether

remand is necessary here in light of the trial court’s failure to address due diligence and

its application of an erroneous burden of proof. For the following reasons, we find that

remand is unnecessary and that, in service of judicial economy, we may review the record

de novo and render a due diligence determination. See Selenski, 994 A.2d at 1089 n.7

(“This Court reviews claims de novo for the sake of judicial economy where the issue was

raised in the Petition for Allowance of Appeal and was fully briefed before us.”).

Pertinently, in Selenski, we granted allowance of appeal to address the propriety

of the Superior Court’s determination that the Commonwealth acted with due diligence in

bringing a defendant to trial on escape charges while it was pursuing an interlocutory

appeal in the defendant’s initial case for homicide. Upon conclusion of the

Commonwealth’s appeal, the defendant filed a motion to dismiss the escape charges

under Rule 600, which the trial court granted, concluding that the two cases against the

defendant had not been properly consolidated. The Commonwealth appealed, and the

[J-102-2020] - 29 Superior Court remanded for reinstatement of the escape charges, finding that joinder of

the cases should have been permitted and that there had been no Rule 600 violation.

On further review, we affirmed the Superior Court, but nonetheless explained that,

while the Superior Court properly determined that the trial court misconstrued Rule 600,

it compounded the trial court’s error by similarly neglecting to consider due diligence and

focusing its inquiry, instead, on the principles of joinder. We reasoned that the proper

action once the Superior Court identified the lower court’s misconstruction of the rule

“would have been” for it to “remand to the trial court to determine whether the

Commonwealth exercised due diligence pursuant to Rule 600.” Id. Nevertheless, in the

interest of judicial economy, we declined to remand and opted to “consider, de novo,

whether the record support[ed] finding the Commonwealth exercised due diligence.”16 Id.

Accordingly, Selenski clearly supports our decision to consider the issue of due diligence

de novo, based on the record currently before us.

Moreover, while not binding, our disposition in Akridge, like our decision in

Selenski, weighs against remand here. As the parties highlight, in Akridge, we concluded

that the Superior Court’s order of remand for the trial court to further consider the

Commonwealth’s due diligence was improper, given that the Commonwealth had already

enjoyed the opportunity to meet its burden of proving due diligence. We found that it

would have been unjust to provide the Commonwealth with another attempt to fulfill its

burden. Here, we reject the Commonwealth’s assertion that the record is deficient and

that an additional hearing is appropriate to permit it to present evidence with respect to

its due diligence. Plainly, the Commonwealth was apprised of Appellant’s challenges to

its due diligence at the two prior Rule 600 hearings, but declined to proffer evidence to

16 Ultimately, in Selenski, we concluded that the Commonwealth had indeed exercised

due diligence in bringing the appellant’s escape case to trial.

[J-102-2020] - 30 establish that it acted with due diligence, as did the Commonwealth in Akridge. Indeed,

we agree with Appellant that remanding to the trial court to allow the Commonwealth

another opportunity to meet its burden of proof with respect to due diligence would be

providing it not merely a second, but a third, bite of the proverbial apple. See Akridge,

422 A.2d at 487.

In any case, remand would legitimately serve only to allow the trial court to apply

the correct standard – ensuring the burden of proof is on the Commonwealth – given that

an additional hearing is not warranted. Indeed, in this regard, the trial court would merely

be tasked with reexamining the record and rendering a due diligence determination based

thereupon; we are perfectly capable of undertaking such an endeavor in the name of

judicial economy and expediency. Accordingly, we find that both Selenski and Akridge

amply support our decision to forego a remand and, instead, consider the inquiry of the

Commonwealth’s due diligence de novo.

The Commonwealth’s further arguments in favor of remand are similarly

unpersuasive. To the extent that the Commonwealth attempts to displace blame for its

failure to meet its burden of proving due diligence on the trial court, we find that, despite

the trial court’s apparent desire to expedite the June 2, 2016 Rule 600 hearing, the

Commonwealth was not precluded from providing explanation or evidence regarding due

diligence — a responsibility for which it was undoubtedly aware.17 Similarly, the

17 At the June 2, 2016 Rule 600 hearing, when asking for the prosecutor’s response to

Appellant’s argument, the trial court stated, “Would you like to say something very quickly, Counsel?” N.T. Rule 600 Hearing, 6/2/16, at 6 (emphasis added). The trial court employed similar language in asking Appellant’s counsel whether she wished to add anything, seemingly evincing that the court sought to expedite the hearing. Nevertheless, it remained incumbent upon the Commonwealth to meet its burden of proof and to provide legitimate argument and evidence with respect to due diligence, and not try to shift that responsibility to the trial court. See, e.g., Bradford, 46 A.3d at 707 (Saylor, J., dissenting) (reasoning that “the Commonwealth should not be permitted to ‘outsource’ aspects of its obligation to bring cases to trial in a timely fashion, . . . free of attendant responsibility and

[J-102-2020] - 31 Commonwealth’s contention that it abstained from offering evidence on the issue of due

diligence after the trial court indicated that it would not hold its own unavailability against

the Commonwealth is contradicted by the record. In its brief, the Commonwealth claims

that its prosecutor was justified in refraining from addressing due diligence in light of the

trial court’s statements that “[i]f the [c]ourt’s on trial, the [c]ourt’s on trial,” N.T. Hearing,

6/22/16, at 6, and that it “can’t hold that [time] against the Commonwealth,” id. at 7.

Critically, as Appellant points out, the trial court made those statements at the June 22,

2016 hearing, at which the trial court issued its decision to deny Appellant’s motion, rather

than at the June 2, 2016 hearing, at which the court accepted arguments on that motion.

Likewise, contrary to the Commonwealth’s assertion, remand is not necessary to

clarify the record with respect to if and when discovery was outstanding in the case. While

the Commonwealth asserts that it should be afforded the opportunity to establish that

outstanding discovery was either non-mandatory, not requested by the defense, or IGJ

material which was not required to be disclosed pursuant to Phila.R.Crim. *556.2, it

overlooks that it had the chance at two prior hearings to establish such factors but

neglected to offer any due diligence evidence, such as by demonstrating that it was not

required to disclose certain items of discovery. To paraphrase Appellant: we are not

presented with a defective record in need of clarification; rather, we have a record which

documents the Commonwealth’s failure to meet its burden of proving due diligence. See

Appellant’s Reply Brief at 2. Accordingly, we proceed to address the merits of Appellant’s

Rule 600 motions — specifically, the question of the Commonwealth’s due diligence.

consequences” (internal citation omitted)). Moreover, our review of the record reveals that the trial court’s apparent desire for a speedy hearing did not deter or intimidate the prosecutor as alleged by the Commonwealth; notably, the prosecutor was comfortable enough to raise a final argument, unprompted by the court, regarding the defense’s motion. See N.T. Rule 600 Hearing, 6/2/16, at 9 (“And, Your Honor, one last thing . . . .”). We, thus, deem the Commonwealth’s argument on this point to be meritless.

[J-102-2020] - 32 Our review of the record reflects that: the Commonwealth filed a complaint against

Appellant on January 22, 2015; the trial court initially directed the Commonwealth to

complete its disclosure of discovery by June 22, 2015, Criminal Docket at 7; on June 22,

2015, the Commonwealth was not prepared to fulfill its discovery obligations, id.; the

Commonwealth requested a continuance on July 28, 2015 related to its discovery

obligations, and the trial court granted a continuance until July 30, 2015, id.; and the trial

court granted the Commonwealth an additional continuance on August 21, 2015, noting

that “IGJ discovery [needed] to be passed,” id. at 9. Further, the record demonstrates

that on May 23 and 24, 2016, “[a]dditional [d]iscovery [was] outstanding,” id. at 12, while

the Commonwealth disclosed “[a]udio discovery . . . at the bar of the [c]ourt” on May 25,

2016, id. at 13. Finally, the record establishes that on November 28, 2016, the morning

on which Appellant’s trial was to begin, the Commonwealth presented a discovery packet,

which included 15 previously undisclosed exhibits, to the defense, prompting Appellant

to lodge a second Rule 600 motion to dismiss.18

Thus, in our view, the record thoroughly establishes that the Commonwealth

neglected to fulfill its discovery obligations, a failure which we have previously held

constitutes a lack of due diligence. Commonwealth v. Edwards, 595 A.2d 52 (Pa. 1991)

(finding that the Commonwealth’s intentional or negligent failure to provide discovery

amounted to a lack of due diligence which justified dismissal of the defendant’s case). As

the record here amply demonstrates that the Commonwealth failed to complete its

18 Additionally, as discussed above, the transcriptions of the parties’ arguments with respect to Appellant’s Rule 600 motions demonstrate that, rather than provide evidence related to its failure to disclose pertinent discovery, the Commonwealth merely offered bald assertions, the likes of which we have previously heralded as deficient for purposes of proving due diligence. See, e.g., Ehredt, 401 A.2d at 360-61 (“Although the preponderance standard is the least burdensome standard of proof known to the law, . . . a bare statement by the Commonwealth’s attorney that several witnesses are ‘unavailable,’ without more, does not establish ‘due diligence’ within that standard.” (internal citation omitted)).

[J-102-2020] - 33 discovery obligations through the date of trial in November 2016 — more than 365 days

after the Commonwealth filed the complaint in January 2015 — it is evident that the

Commonwealth was not prepared to proceed to trial prior to that time, and that it failed to

prosecute Appellant’s case with due diligence. Accordingly, given that the

Commonwealth thus violated Rule 600, we reverse the Superior Court’s order, reverse

Appellant’s judgment of sentence, and order him discharged.

Order and judgment of sentence reversed. Appellant is discharged.

Justices Saylor, Donohue and Wecht join the opinion.

Justice Dougherty files a dissenting opinion in which Chief Justice Baer and Justice

Mundy join.

[J-102-2020] - 34