Criminal Procedure Rule 600 Time Requirement; New Hearing on Commonwealth’s Due Diligence

Commonwealth v. Harth, 2019 WL 5212395 (Pa. Super. 2019) (unreported), allocatur granted June 2, 2020, appeal docket 13 EAP 2020.

The Pennsylvania Supreme Court granted allocatur in this case to determine whether the Superior Court erred in remanding for a new hearing on the Commonwealth’s due diligence under Pa. R. Crim. P. Rule 600.

Pennsylvania Rule of Criminal Procedure 600(A)(2)(a) requires that a trial commence within 365 days from the date the written complaint was filed; however, “excusable delay” is not calculated against Commonwealth in Rule 600 analysis. In Commonwealth v. Hunt, 858 A.2d 1238 (Pa. Super. 2004) (en banc), appeal denied,  875 A.2d 1073 (Pa. 2005), the Superior Court differentiated between “excludable time” defined in Rule 600(C) from “excusable delay,” explaining:

“Excludable time” is defined in Rule 600(C) as 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 whereabouts were unknown and could not be determined by due diligence; any period of time for which the defendant expressly waives Rule 600; and/or 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. “Excusable delay” is not expressly defined in Rule 600, but the legal construct takes into account delays which occur as a result of circumstances beyond the Commonwealth’s control and despite its due diligence.

Id. at 1241.  

On January 22, 2015, the Commonwealth filed a complaint against Khalid Harth and co-defendant after a group of individuals participated in a home invasion and armed robbery of several victims. Therefore, the initial Rule 600 mechanical run date was January 22, 2016. On February 24, 2015, a grand jury indicted Harth for robbery, burglary, conspiracy to commit robbery, and conspiracy to commit burglary. During the scheduling conference on April 7, 2015, the Commonwealth was ordered to pass discovery by June 22, 2015, and trial was scheduled for September 28, 2015. On the original discovery due date, an extension to pass discovery was set for July 28, 2015. On that date, the Commonwealth’s motion for continuance to pass discovery was granted and a new discovery date was set for July 30, 2015. In September 2015, the original trial date was rescheduled to December 14, 2015 due to the Pope visiting Philadelphia. On August 21, 2015, the rescheduled trial date was again rescheduled to January 11, 2016. The record was silent on why the court rescheduled or if the Commonwealth was ready for trial. On December 29, 2015, the court rescheduled the trial to January 25, 2016. Again, the record was silent on the reasoning and if the Commonwealth was ready for trial. As of December 2015 and January 2016, the Commonwealth had not passed discovery. On January 25, 2016, the court rescheduled the trial to May 23, 2016, because co-defendant’s counsel was on trial for an unrelated matter and the Commonwealth refused to sever the case. On May 23, 2016, Harth filed his first Rule 600 motion for the Commonwealth’s failure to pass discovery. A hearing for Harth’s Rule 600 motion was scheduled for June 2, 2016. Under Rule 600, the trial court was required to determine whether the Commonwealth exercised due diligence by a showing of reasonable effort by the Commonwealth. In Commonwealth v. Preston, 904 A.2d 12 (Pa. Super. 2006) (en banc), appeal denied, 591 Pa. 663, 916 A.2d 632 (2007), the court held that:

Failure to provide mandatory discovery is not a per se basis for “excusable delay” of trial. Failure to provide mandatory discovery, without more, does not toll the running of the adjusted run date. Moreover, if the delay in providing discovery is due to either intentional or negligent acts, or merely stems from the prosecutor’s inaction, the Commonwealth cannot claim that its default was “excusable.”

On June 22, 2016, the court denied Harth’s Rule 600 motion and rescheduled trial for November 28, 2016. On November 28, 2016 Harth orally made a second Rule 600 motion and the Commonwealth passed 15 allegedly new documents. On November 29, 2016, the court denied Harth’s second Rule 600 motion. Subsequently, the parties completed jury selection and went to trial. On December 2, 2016, Harth was convicted “of three counts each of robbery and burglary, and one count each of conspiracy to commit robbery and conspiracy to commit burglary.” Slip Op. at 13.

The Superior Court remanded a hearing for the Commonwealth’s due diligence because of the various delays the Superior Court was unable to determine were considered excusable or excludable. The Superior Court reasoned:

Based upon the foregoing, we are unable to calculate the adjusted run date for Appellant’s trial. Despite viewing the facts of record in a light most favorable to the Commonwealth, the record is inconsistent, at best, and the trial court failed to account for the cause of several continuances or if the Commonwealth was: (i) duly diligent in preparing the case for trial, including in its efforts to procure and pass discovery to Appellant; and (ii) ready for trial before the court continued trial. The trial court conducted no due diligence analysis with respect to whether the Commonwealth had met its discovery obligations throughout the case. Additionally, the record does not show if and when the Commonwealth was ready for trial until November 28, 2016, when trial began. Accordingly, we remand the case for the trial court to conduct a hearing to clarify the record on: (1) the cause for all continuances; (2) if and when the Commonwealth was ready to proceed to trial; and (3) whether the Commonwealth exercised due diligence bringing Appellant to trial. [Citation omitted] (stating proper action for Superior Court was to remand for trial court to determine whether Commonwealth exercised due diligence pursuant to Rule 600, where trial court failed to conduct proper due diligence analysis in first instance). Upon remand, and contrary to what the court stated several times on the record, the Commonwealth bears the burden to establish due diligence throughout the case, e.g., it was prepared for trial, it kept adequate records to ensure compliance with Rule 600, and its failure to provide discovery did not stem from intentional or negligent conduct or inactivity. [Citation omitted].

Slip Op. at 30-31.

The Supreme Court granted allocatur to review:

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?

For more information, contact Kevin McKeon or Dennis Whitaker.