J-A04003-24
2024 PA Super 107
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.*
OPINION BY STABILE, J.: FILED MAY 28, 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.
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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included the previously withdrawn charge of driving under suspension.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previously withdrawn charge.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).
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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 for trial 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 [(Pa.
2017)] (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
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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 opinion.
Date: 5/28/2024
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