J-A04008-24
2024 PA Super 189
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
SALEEM DUNMORE : No. 511 EDA 2023
Appeal from the Order Entered January 24, 2023
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000997-2022
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J. *
OPINION BY STABILE, J.: FILED AUGUST 22, 2024
The Commonwealth appeals from an order granting the motion of
Appellee Saleem Dunmore to dismiss charges due to a violation of Appellee’s
speedy trial rights under Pa.R.Crim.P. 600. We vacate the order of dismissal
and remand for trial.
On November 17, 2021, a Philadelphia police officer pulled over Appellee
for running a stop sign in his car. During the traffic stop, the officer recovered
multiple packets of heroin, a loaded .40-caliber handgun, a loose bullet and a
small amount of marijuana from the car. On November 18, 2021, the
Commonwealth filed a criminal complaint charging Appellee with possessing a
controlled substance with intent to deliver, simple possession, carrying a
firearm without a license and carrying a firearm in public in Philadelphia.
On December 7, 2021, the scheduled date of the preliminary hearing,
the parties jointly requested a continuance, and the preliminary hearing was
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* Retired Senior Judge assigned to the Superior Court.
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rescheduled to January 7, 2022. On January 7, 2022, the court rescheduled
the preliminary hearing “due to court closure (inclement weather).” Docket,
entry 12. The preliminary hearing took place on February 14, 2022, and
Appellee was held for court on all charges. On February 28, 2022, Appellee
was arraigned.
On March 23, 2022, the defense requested all mandatory discovery,
including any possible exculpatory evidence under Brady v. Maryland, 373
U.S. 83 (1963). In particular, Appellee requested photographs of the handgun
removed from his car and a report concerning whether Appellee’s DNA
matched DNA found on the handgun.
The next three listings of this case took place on April 25, 2022, June
27, 2022 and October 11, 2022. On April 25, 2022, the Commonwealth
provided partial discovery, including a copy of a search warrant for Appellee’s
DNA. The affidavit of probable cause stated that the gun recovered from
Appellee was swabbed for DNA and submitted to FIU 1 for further analysis. The
search warrant was served on the date of arrest, November 17, 2021, and
Appellee’s DNA sample was obtained on that date, ready to compare to the
DNA swab lifted from the gun removed from Appellee’s car on the same date.
Even so, the Commonwealth did not produce the DNA analysis or photographs
of the gun on April 25, 2022. On June 27, 2022, discovery remained
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1 We discern from the notes of testimony that FIU refers to the “Firearms
Identification Unit”, a unit contained within the Philadelphia Police
Department’s “Office of Forensic Science”. N.T. 1/24/23, 5-7.
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incomplete, with the DNA report and photos still outstanding. On October 11,
2022, discovery continued to remain incomplete because the DNA report and
photos remained outstanding. At each of these listings, the Commonwealth
requested continuances, and the docket listed the reason for each continuance
as “Commonwealth Request for Continuance-DA-Discovery Incomplete.” For
each continuance request, the docket noted that one of the outstanding
discovery items was “photos.” Defense counsel requested the DNA results at
the April 25, 2022, and June 27, 2022 listings.
On October 11, 2022, the court set a trial date of January 24, 2023. On
January 13, 2023, with discovery still outstanding, the defense filed a motion
to dismiss based on Rule 600 violations.
On January 17, 2023, the court held a pretrial conference. The
Commonwealth admitted that discovery on the DNA result remained
outstanding. N.T., 1/17/23, at 3. The Commonwealth stated that it had
ordered the DNA analysis on July 28, 2022, 127 days after it was requested
by the defense on March 23, 2022, and 253 days after it was available for
testing (the arrest date of November 17, 2021). Id. The Commonwealth did
not provide any information about the outstanding photographs. The court
stated, “So it sounds like we are not ready for trial.” Id. at 4. The
Commonwealth responded, “I believe that is correct, your Honor.” Id.
In response to the Commonwealth’s admission that it was not ready,
the court converted the scheduled trial date of January 24, 2023 to a date for
status of discovery and argument on motions, including Appellee’s Rule 600
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motion. Id. (“so let’s keep the 24th on the calendar for status of discovery”).
The court later stated, “Based on the [c]ourt’s knowledge of its calendar, it
would not have been possible to set a new trial date any earlier than April of
2023, and the date would quite possibly have been later than that.” Pa.R.A.P.
1925 Opinion, 6/26/23, at 3-4.
On January 24, 2023, the Court held a hearing on Appellee’s Rule 600
motion. The Commonwealth conceded that defense counsel had first
requested a DNA report and photographs of the firearm involved in the arrest
on March 23, 2022. N.T., 1/24/23, at 6-7. The Commonwealth added that
the District Attorney’s Office received the DNA results on January 19, 2023
and furnished them to the defense on January 20, 2023. Id. at 5.
The Commonwealth stated that after each of the discovery
continuances, the District Attorney’s Office sent an email to the assigned
detective requesting photographs but received no response. Id. at 10. The
Commonwealth conceded for the first time that the photographs did not exist.
Id. at 8. The Commonwealth admitted that it had not told Appellee at any
earlier point in the case that the photographs did not exist, id. at 8, 15, but it
claimed that its failure to make this disclosure earlier in the case did not
demonstrate lack of due diligence. Id. at 20. The trial court disagreed and
announced its intent to grant the Rule 600 motion. Id. at 23. The
Commonwealth replied that it had officers in the room and was ready to
proceed with trial. Id. at 23-25. Defense counsel objected, arguing, “[When]
we were here for a pretrial conference [one week earlier, the] District Attorney
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said they would not be ready today because of the outstanding discovery.
They can’t just come in the day … when it’s a status listing, and say, surprise,
we brought our officers and now we are ready.” Id. at 24. The court agreed
with defense counsel, noting that because the Commonwealth had requested
a continuance, “today is not a trial date. It’s another date because of all the
discovery continuances.” Id.
The court verbally granted the Rule 600 motion at the conclusion of the
January 24, 2023 hearing, id. at 25, but it did not enter a written order
granting the motion. On February 24, 2023, the Commonwealth filed a notice
of appeal to this Court. The notice was premature because the court had not
yet entered a written order granting the Rule 600 motion. On April 12, 2023,
following notice from this Court concerning the absence of a written order, the
trial court entered a written order granting the Rule 600 motion. Since the
written order granting a Rule 600 motion was a final and appealable order,
Commonwealth v. Mayo, 2024 WL 396643, *2 (Pa. Super., filed Feb. 2,
2024), the April 12, 2023 order was a final order that perfected this Court’s
jurisdiction over the Commonwealth’s appeal. See Pa.R.A.P. 905(a)(5) (“[a]
notice of appeal filed after the announcement of a determination but before
the entry of an appealable order shall be treated as filed after such entry and
on the day thereof”). Both the Commonwealth and the trial court complied
with Pa.R.A.P. 1925.
The Commonwealth raises a single issue in this appeal:
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Did the lower court err by dismissing all charges under Rule 600,
where fewer than 365 days of potentially includable time passed
between the filing of the criminal complaint and the dismissal of
the charges, and where the Commonwealth was trial ready before
the adjusted run date?
Commonwealth’s Brief at 4.
When presented with a speedy trial claim arising under Rule 600,
our standard of review of a trial court’s decision is whether the
trial court abused its discretion. Judicial discretion requires action
in conformity with law, upon facts and circumstances judicially
before the court, after hearing and due consideration. 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, as shown by the evidence or the record,
discretion is abused.
The proper scope of review is limited to the evidence on the record
of the Rule [600] evidentiary hearing, and the findings of the
[trial] court. An appellate court must view the facts in the light
most favorable to the prevailing party.
Additionally, when considering the trial court’s ruling, this Court is
not permitted to ignore the dual purpose behind Rule [600]. Rule
[600] serves two equally important functions: (1) the protection
of the accused’s speedy trial rights, and (2) the protection of
society. In determining whether an accused’s right to a speedy
trial has been violated, consideration must be given to society’s
right to effective prosecution of criminal cases, both to restrain
those guilty of crime and to deter those contemplating it.
However, the administrative mandate of Rule [600] was not
designed to insulate the criminally accused from good faith
prosecution delayed through no fault of the Commonwealth.
So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule [600] must be construed in a manner
consistent with society’s right to punish and deter crime. In
considering [these] matters ..., courts must carefully factor into
the ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.
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Commonwealth v. Reed, 292 A.3d 601, 610 (Pa. Super. 2023). The
Commonwealth bears the burden of proving, by a preponderance of evidence,
that it acted with due diligence throughout the proceedings.
Id.
Rule 600 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). For
purposes of the rule, trial is deemed to commence on the date the trial judge
calls the case to trial, or a defendant tenders of plea of guilty or nolo
contendere. Pa.R.Crim.P. 600(A)(1). In 2013, our Supreme Court amended
Rule 600 to reorganize and clarify the provisions of the rule in view of a long
line of cases that construed the rule. See Rule 600 cmt. Prior to 2013, Rule
600 required that both “excludable” and “excusable” time be considered to
arrive at an adjusted run date by which a defendant must be brought to trial. 2
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2 Prior to its amendment in 2013, Rule 600 provided in part:
Rule 600. Prompt Trial
...
[ (A) ](3) Trial in a court case in which a written complaint is filed
against the defendant, when the defendant is at liberty on bail,
shall commence no later than 365 days from the date on which
the complaint is filed.
...
(B) 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.
(C) In determining the period for commencement of trial, there
shall be excluded therefrom:
(Footnote Continued Next Page)
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See Commonwealth v. Ramos, 936 A.2d 1097 (Pa. Super. 2007).
“Excludable” time under former Rule 600(C) only included delay imputed to
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(1) the period of time between the filing of the written complaint
and the defendant’s arrest, provided that the defendant could not
be apprehended because his or her whereabouts were unknown
and could not be determined by due diligence;
(2) any period of time for which the defendant expressly waives
Rule 600;
(3) such period of delay at any stage of the proceedings as results
from:
(a) the unavailability of the defendant or the defendant’s attorney;
(b) any continuance granted at the request of the defendant or
the defendant’s attorney.
...
(G) For defendants on bail after the expiration of 365 days, at any
time before trial, the defendant or the defendant’s attorney may
apply to the court for an order dismissing the charges with
prejudice on the ground that this rule has been violated. A copy
of such motion shall be served upon the attorney for the
Commonwealth, who shall also have the right to be heard thereon.
If the court, upon hearing, shall determine that the
Commonwealth exercised due diligence and that the
circumstances occasioning the postponement were beyond the
control of the Commonwealth, the motion to dismiss shall be
denied and the case shall be listed for trial on a date certain. If,
on any successive listing of the case, the Commonwealth is not
prepared to proceed to trial on the date fixed, the court shall
determine whether the Commonwealth exercised due diligence in
attempting to be prepared to proceed to trial. If, at any time, it is
determined that the Commonwealth did not exercise due
diligence, the court shall dismiss the charges and discharge the
defendant.
See Commonwealth v. Ramos, 936 A.2d 1097, 1101 (Pa. Super. 2007)
(noting that at that time this Court was aware that a substantial revision of
Rule 600 had been proposed to the Pennsylvania Supreme Court).
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the defense. Id.; see also Commonwealth v. Lynn, 815 A.2d 1053 (Pa.
Super. 2003) (judicial delay not included in excludable delay under Rule
600(C)); Commonwealth v. Matis,
710 A.2d 12 (Pa. 1998) (decided under
Rule 1100 before this rule was renumbered as Rule 600). We fashioned the
doctrine of “excusable” delay under former Rule 600(G) (now repealed) as a
legal construct to take into account delays that occurred because of
circumstances beyond the Commonwealth’s control despite its due diligence.
Ramos,
936 A.2d at 1102. The time under which a defendant had to be tried
under former Rule 600 required three steps. First, a 365-day mechanical run
date was calculated. Second, excludable time was added, if any, to this date
to arrive at an adjusted run date. As stated, excludable time included that
attributable to the defense. Third, if trial took place after the adjusted run
date, we examined whether there were further excusable delays outside the
control of the Commonwealth that were not the result of a lack of diligence.
See Ramos,
936 A.2d at 1101-03 (detailed analysis of three-step process).
This excusable time then was added to the adjusted run date to produce a
final Rule 600 run date. If the Commonwealth did not bring a defendant to
trial before that final run date, the trial court was obliged to dismiss the
charges.
The 2013 amendments simplified Rule 600(C) by eliminating the need
to identify delay times attributable to the defense. Rather, Rule 600(C)(1)
now simply excludes all delay except for that attributable to times when the
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Commonwealth caused delay when acting without due diligence. The time
periods formally delineated as excludable time under Rule 600(C) now are
simply examples of excluded time. See Pa.R.Crim.P. 600 cmt. Amended Rule
600 now provides concisely in pertinent part:
(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.
Pa.R.Crim.P. 600(C). To determine if a violation of Rule 600 has occurred
under the plain language of Rule 600(C), we may now simply exclude all
periods of delay from the applicable date, except for those chargeable to the
Commonwealth where it has failed to act diligently. That calculation then
determines whether a defendant has been brought to trial within the time
limits of Rule 600.
When a criminal complaint is filed, the time in which trial must begin
(the mechanical run date) commences 365 days from when the complaint is
filed. Pa.R.Crim.P. 600(A)(2)(a). When examining a Rule 600 motion, we
may examine delay as follows. First, the date when trial actually commenced
is noted. Id. From that date (assuming it is beyond the mechanical run date),
all periods of delay are subtracted, except those attributable to the
Commonwealth where it has not acted with due diligence. This produces a
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date to compare with the mechanical run date. If this date falls before the
mechanical run date, no Rule 600 violation has occurred. If it falls after the
mechanical run date, the rule has been violated, and the defendant is entitled
to dismissal.3
The methodology changes somewhat when a Rule 600 motion is filed
before trial commences. There, as here, Rule 600 is examined as of the date
the Rule 600 motion is filed, since logically, a trial date cannot be used as no
trial has commenced. In those instances, our case law has held that to obtain
relief under Rule 600, the defendant must have a valid Rule 600 claim at the
time he files his motion to dismiss the charges. Commonwealth v. Hunt,
858 A.2d 1234, 1243-4 (Pa. Super. 2004) (where defendant “did not have a
valid Rule 600 claim at the time he filed his March 25, 2002 motion to dismiss,”
the trial court “erred in granting [his] motion to dismiss”); Commonwealth
v. Hyland,
875 A.2d 1175, 1191 (Pa. Super. 2005) (citing Hunt; “Appellant
did not have a valid Rule 600 motion when he filed it; in fact, the motion was
premature . . . the time taken for the decision on Appellant’s motion is also
excludable”); see also Commonwealth v. Banks,
2021 WL 487358, *5 (Pa.
Super., Feb. 10, 2021) (unpublished memorandum) (“[a]dding the total of 74
days of excludable time to [defendant’s] mechanical run date yields an
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3 We observe that continuing to utilize pre-2013 methodology would yield the
same result. See
Ramos, supra.
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adjusted run date of December 26, 2018. [Defendant] filed his Rule 600
Motion on December 20, 2018. Therefore, [defendant’s] Rule 600 Motion was
premature, and we discern no abuse of discretion in the trial court’s denial of
[defendant’s] Motion”); Commonwealth v. Powell, 2022 WL 2236298, *7
(Pa. Super., Jun. 22, 2022) (trial court acted within its discretion by denying
Rule 600 motions that were “filed . . . before the date that we have calculated
as the adjusted run date” and therefore were “premature”); Commonwealth
v. Burns,
2024 WL 3100027, *5 (Pa. Super., filed Jun. 24, 2024) (reversing
order granting dismissal under Rule 600; “although the adjusted run date is
January 3, 2023, the trial court granted Appellee’s motions to dismiss, which
were filed on December 27, 2022. Consequently, we agree with the
Commonwealth that the Rule 600 motions were premature, and the trial court
erred in granting them”) (cleaned up). 4
Instantly, the complaint against Appellee was filed on November 18,
2021, thus making November 18, 2022, the mechanical run date under Rule
600. As of January 13, 2023, when Appellee filed his Rule 600 motion, the
mechanical run date was exceeded by 57 days (November 18, 2022 through
January 13, 2023). There were, however, two periods of excludable delay
that occurred prior to the filing of Appellee’s Rule 600 motion. First, as the
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4 See Pa.R.A.P. 126(b) (unpublished, non-precedential memorandum
decisions of the Superior Court filed after May 1, 2019 may be cited for their
persuasive value).
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trial court correctly held, 31 days between December 7, 2021, and January 7,
2022, were excludable due to a joint request to continue the preliminary
hearing. As we stated in Commonwealth v. Reed, 292 A.3d 601 (Pa. Super.
2023), “Rule 600 expressly excludes from computation periods of delay
resulting from ‘any continuance granted at the request of the defendant or the
defendant’s attorney.’ Pa.R.Crim.P. 600(C)(3)(b). 5 Continuances based on
joint requests by the Commonwealth and the defendant are excludable time
under this rule.”
Id. at 611. The second period of 38 days (January 7, 2022
to February 14, 2022, the date of Appellee’s preliminary hearing) was
excludable because it resulted from closure of the court on January 7, 2022,
due to inclement weather. This delay from weather-related circumstances
was entirely beyond the Commonwealth’s control. These two periods of
excludable time totaled 69 (31 + 38) days. There was no other excludable
time in this case. When 69 days of excludable delay are subtracted from the
date Appellee filed his Rule 600 motion, the calculation produces a date of
November 5, 2022, a date prior to the mechanical run date of November 18,
2022. Under these facts, we conclude that the trial court abused its discretion
in finding a Rule 600 violation and dismissing this case.
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5 The citation to Rule 600(C)(3)(b) in Reed appears to be a typographical
error. The correct citation is to Rule 600(C)(2), which provides that “periods
of delay caused by the defendant shall be excluded from the computation of
the length of time of any pretrial incarceration.”
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The trial court reasoned in its Rule 1925(a) opinion that dismissal under
Rule 600 was proper because the Commonwealth requested multiple
discovery continuances to produce DNA analysis and to respond to a simple
request for photographs. The trial court concluded that the trial of this case
was delayed well past Rule 600's 365-day limit. The record, however, does
not support its conclusion.
Appendix A to the trial court’s 1925(a) opinion, reproduced below,
details in chart form the progress of this case assigning time attribution from
commencement through January 24, 2023, the expected trial date.
Events Start Date End Date Number of Time
Days Attribution
PARS Transfer to 11/18/2021 12/7/2021 19 Court time
first scheduled
preliminary hearing
Preliminary hearing 12/7/2021 1/7/2022 31 Joint request
continued-
"Defendant
unavailable" and
"Police Officer
subpoena failed"5
Preliminary hearing 1/7/2022 2/14/2022 38 Court time
continued - court
continuance -
"inclement weather"
Preliminary hearing 2/14/2022 2/28/2022 14 Court time
to CP Trial
Commissioners
scheduling
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CP Trial 2/28/2022 3/23/2022 23 Court time
Commissioners
scheduling to
Common Pleas
scheduling
conference6
Common Pleas 3/23/2022 4/25/2022 33 Court time
scheduling
conference to first
felony waiver room
listing
First felony waiver 4/25/2022 6/27/2022 63 Commonwealth
room listing to first request
status of discovery
listing. "[D]iscovery
still outstanding:
DNA, F.I.U. and
photos. Time ruled
not excluded."
First status of 6/27/2022 10/11/2022 106 Commonwealth
discovery listing to request
second status of
discovery listing.
"Outstanding
Discovery: Notes Of
Testimony, DNA
Report and Photos.
. .. Time Not Ruled
Excludable."
Second status of 10/11/2022 1/17/2023 98 Commonwealth
discovery listing to request
pretrial conference.
"Discovery
Incomplete ...
[PARS], body worn
camera to be
repassed, photos,
and 229 for driver."
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Pretrial conference 1/17/2023 1/24/2023 7 Commonwealth
to third status of request
discovery listing.
Trial date vacated.
"Discovery
Incomplete ...
Outstanding DNA
result, 229, and
photos."
Total 432 days
Total Court Time 127 days
Total Joint/Defense Requests 31 days
Total Commonwealth Requests 274 days
In its opinion, the court correctly calculated the mechanical run date as
November 22, 2022. The court arrived at an adjusted run date of December
19, 2022 by adding 31 days of excludable delay for the period between
December 7, 2021, and January 7, 2022, due to a joint request for
continuance by the parties. Even if trial had been scheduled for January 24,
2023, the court reasoned it would not have abused its discretion in granting
the motion, based on the Commonwealth's lack of due diligence and the fact
that the adjusted run date had passed. However, the time delineations
identified by the court above reveal that it apparently, and perhaps
inadvertently, failed to further adjust the mechanical run date for the time
between January 7, 2022, and February 14, 2022, for the period of 38 days
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that the court correctly notes in its chart was attributable to inclement weather
delay. Addition of these 38 days of excludable delay to the court’s adjusted
run date of December 19, 2022, establishes an adjusted run date of January
26, 2023, a date 13 days later than the filing of Appellee’s Rule 600 motion.
Thus, when the court’s calculations are corrected to account for all excusable
delay, it demonstrates that as of the time Appellee filed his Rule 600 motion,
the adjusted Rule 600 date for commencing trial had not been exceeded. 6 The
court thus improperly granted Rule 600 relief.7
Based on the foregoing, we vacate the trial court’s April 12, 2023, order
and remand for reinstatement of the charges that were dismissed due to the
court’s erroneous finding of a Rule 600 violation.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
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6 The trial court calculates total time of 432 days.
This time however includes
time through January 24, 2023, some 11 days after the filing of Appellee’s
Rule 600 motion.
7 We reach this conclusion despite our disapproval of the manner in which the
Commonwealth progressed this case.
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Date: 8/22/2024
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