Does Pennsylvania Rule of Criminal Procedure Rule 600 begin to run after a defendant is originally charged, or after additional charges?

Commonwealth v. Womack, 2022 WL 1284618 (Pa. Super. 2022) (unreported), allocatur granted Nov. 30, 2022, appeal docket 110 MAP 2022

In this case, the Pennsylvania Supreme Court will consider whether Pennsylvania Rule of Criminal Procedure 600 starts to run after a defendant is originally charged with crimes, but further police investigation uncovers a much larger criminal operation, resulting in additional charges.

Rule 600 provides:

(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.

* * *

(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(A)(1), (A)(2)(a), (C)(1), (D)(1).

Superior Court summarized the facts as follows:

Womack was a principal in a drug trafficking organization based in Philadelphia. Since March of 2017, he sold drugs at the Huntingdon County residence of Tyler and Bobbi Martin. Womack’s illegal activities in Huntingdon County led to his prosecution at two separate dockets. The Huntingdon County District Attorney (DA) prosecuted Case CP-31-CR-533-2017 (the first case), which was ultimately dismissed under Rule 600. The Office of Attorney General (OAG) prosecuted Case CP-31-CR-851-2018 (the second case), which led to Womack’s convictions in this appeal.

Pennsylvania State Police Trooper Andrew Corl had been investigating drug sales and drug activity in Huntingdon County since late 2016. At first, Trooper Corl focused on Jesse Hamman’s residence, which he investigated with trash pulls, controlled purchases by confidential informants, and a remotely accessible video camera. Trooper Corl learned from this investigation that Womack was selling drugs at the Martins’ residence.

Trooper Corl arranged for three controlled purchases from Womack to a confidential informant in August and September of 2017. Based on these controlled purchases, Trooper Corl prepared a search warrant for the Martins’ residence. The warrant was issued and executed on October 6, 2017. Womack and the Martins were present at the time. Womack had large amounts of money and drugs and a stolen Ruger .22 rifle both on his person and elsewhere in the residence. Police arrested Womack.

The same day, October 6, 2017, Trooper Corl filed a criminal complaint in the first case, charging Womack with nine offenses “on or about 10/06/17.” All charges were held for court. Womack moved for bail, which the trial court set at $250,000.00. Womack did not post bail and thus remained in jail. The trial court appointed Attorney Lance Marshall to represent Womack.

Trooper Corl continued to investigate drug activity. The Martins and other arrestees gave information about Womack’s Philadelphia organization and another drug trafficking organization based in Pittsburgh. Police executed additional search warrants. Trooper Corl reviewed data from Womack’s cell phone, which had been seized during the execution of the October 6, 2017 search warrant. Based on the scope of the criminal activity revealed in the continued investigation, the DA requested OAG’s assistance pursuant to the Commonwealth Attorneys Act, 71 P.S. § 732-101–732-506. OAG accepted.

From late 2017 to the summer of 2018, OAG presented evidence of the investigation to the 42nd Statewide Investigating Grand Jury. This included testimony from Trooper Corl, the Martins, and many others from Huntingdon County. It also included information from trash pulls, Womack’s cell phone, and Womack’s recorded jail telephone calls after his arrest.

While their grand jury investigation was pending, OAG asked the DA to keep the first case on hold. On April 10, 2018, 186 days after his arrest, Womack moved under Rule 600(D)(2) for nominal bail. The trial court granted the motion, but Womack remained incarcerated due to a parole detainer from a previous Philadelphia case. Through September 2018, the DA repeatedly told the trial court that the first case was not ready for trial.

On October 23, 2018, the grand jury returned Presentment Number 7, describing its findings about the Philadelphia and Pittsburgh drug trafficking organizations. On October 31, 2018, Trooper Corl and Corporal Charles Schaefer filed a 28-count criminal complaint in the second case against Womack based on the presentment.2 Womack was one of 34 individuals arrested based on the grand jury investigation. The court appointed Attorney Anthony Zanoni to represent Womack in the second case; Attorney Marshall still represented Womack in the first case. Attorney Zanoni did not appear at Womack’s December 19, 2018, preliminary hearing in the second case. All 28 counts from the second complaint were held for court.

On February 13, 2019, Womack moved to dismiss the second case under Rule 600 based on the filing date of the complaint in the first case. The trial court heard the motion and then denied it on March 12, 2019.

The next day, March 13, 2019, Womack moved to dismiss the first case under Rule 600. The trial court heard the motion and dismissed the first case with prejudice on May 9, 2019. The Commonwealth did not appeal.

Meanwhile, on March 29, 2019, OAG filed an amended criminal information in the second case, reducing the number of charges from 28 to 13 and providing separate date ranges for the four remaining PWID counts.

On June 3, 2019, in lieu of scheduled jury selection, the trial court granted a motion to withdraw by Attorney Zanoni. It appointed Attorney James Best to represent Womack, then granted a defense motion to continue.

At a pre-trial conference on September 6, 2019, Womack rejected an 11-to-23-year plea offer, insisting that the second case should also have been dismissed under Rule 600. The trial court thus granted Womack’s request to certify the issue for interlocutory appeal nunc pro tunc. Rather than appeal, Womack filed an uncounseled Rule 600 motion on October 18, 2019.

On December 26, 2019, Womack filed a pro se motion to waive counsel, or for new appointed counsel, based on Womack’s dissatisfaction with Attorney Best for not persisting with the same Rule 600 argument as before. Instead of holding jury selection on January 13, 2020, the trial court heard Womack’s motion. Womack elected to proceed with Attorney Best. The court provided Womack 14 days to file an omnibus pre-trial motion.

Womack filed an omnibus motion on February 10, 2020, moving for a pre-trial writ of habeas corpus and for Rule 600 dismissal. The court held a habeas corpus hearing on February 10, 2020 and denied the petition on April 22, 2020. On July 16, 2020, the court held a short Zoom hearing on the Rule 600 motion. Womack spoke and insisted that the Commonwealth was trying to circumvent Rule 600 by filing two complaints based on the same criminal episode. The court denied the motion by order of August 11, 2020.

Womack’s prior sentence from Philadelphia expired on August 7, 2020. Womack, who had been incarcerated since his arrest on October 6, 2017, was released on his own recognizance. He went to Philadelphia and obtained employment.

Trial was scheduled for October 8, 2020, with jury selection on September 17, 2020. The trial court held a Zoom pre-trial conference on September 14, 2020, where Attorney Best represented that Womack wanted a bench trial. The trial court ordered Womack to appear on September 17, 2020 to confirm his waiver of a jury trial. When Womack did not appear in court on time on September 17, 2020, the trial court issued a bench warrant. The court rescinded the warrant when Womack finally arrived.

Before trial began on October 8, 2020, Womack moved for a continuance:

MR. BEST: Your Honor, Mr. Womack is present today. He’s expressed to me a desire to retain private counsel to represent him in this proceeding. Mr. Womack had been recently released from his State sentence. He’s living again in Philadelphia. He’s working at a slaughterhouse in that area at a salary that would be beyond what would qualify him for appointed counsel. He wants to use the services of an attorney named George Gossett, G-O-S-S-E-T-T. Mr. Gossett did speak to me on the phone yesterday. He is ready, willing and able to take Mr. Womack’s case, so I think it is Mr. Womack’s right to have counsel of his choice and I’m asking the Court to entertain that request.

THE COURT: He certainly would have the right to counsel of his choice. You’re not his first attorney, Mr. Best. We’ve continued this trial multiple times. In fact, as you’re well aware there were Rule 600 motions because of all the continuances. This court system has bent over backwards to get this case moving. We’re here now for trial. The indication that this was going to happen was just made this week, in fact, and for the record you emailed my staff, indicated that you wished to put this motion on the record and I think that was either Monday or Tuesday.

The bottom line is it’s too late to do that. The Commonwealth would be prejudiced as would this Court due to the efforts taken. The transport orders alone getting witnesses here, the money that has been spent in doing this. This case has been dragging on since 2018 and I attempted to count the number of continuances and scheduling notices this morning in the file and I lost count somewhere around 20. So we’re going to proceed with trial.

MR. BEST: Okay.

THE COURT: I assume the motion is in the form of a continuance, is that right?

MR. BEST: That’s correct.

THE COURT: We’re going to enter this order.

Now, October 8, 2020, the defense on-the-record motion for trial continuance is denied. By the Court.

N.T., 10/8/20, at 1–3.

The bench trial then proceeded, with the Commonwealth presenting 16 witnesses. The Commonwealth withdrew the charge of sale or transfer of firearms to an unlicensed person. The trial court convicted Womack of three counts of PWID, conspiracy to commit PWID, dealing in proceeds of unlawful activity, corrupt organizations, persons not to possess firearms, firearms not to be carried without a license, and criminal use of a communications facility and acquitted him of the three remaining charges. On November 12, 2020, the trial court sentenced Womack to an aggregate term of 39 to 90 years of imprisonment.

Womack filed post-sentence motions on November 23, 2020. The trial court granted Attorney Best’s motion to withdraw and appointed Attorney Wesley Mishoe, who filed amended post-sentence motions on January 21, 2021. The trial court heard arguments on March 1, 2021 and denied the motions on March 22, 2021. This timely appeal followed. Womack and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.

Slip op. at 2-8 (footnotes omitted).

On appeal, Womack argued that:

the Rule 600 time calculation should be based on the date of the first complaint because the Commonwealth was not diligent in prosecuting the first complaint and the earlier investigation was “assumed” into grand jury proceedings. Womack’s Brief at 50–54. He submits that this method would ensure that the prosecution is timely and that the Commonwealth does not keep the first docket open as a “placeholder.” Id. at 51–53. Here, Womack indicates that the Commonwealth did not exercise due diligence in prosecuting the first complaint and that that investigation was subsumed into the grand jury case. Id. at 57. Therefore, he asks this Court to recalculate the Rule 600 time limit based on the date of the first complaint—which served as the basis for the trial court’s dismissal of the first case.

Womack disagrees with the method that the trial court used to select the date of the second complaint. Although he had advocated for a compulsory joinder analysis as an alternative to the trial court, he contends that this should not apply in the Rule 600 context. Id. at 48 n.13. Womack warns that the trial court’s method hampers Rule 600 and causes confusion here and in future cases. Womack’s Reply Brief at 6–8.

Slip op. at 13. The Commonwealth countered that the trial court’s Rule 600 determination was within its discretion, where there was no evidence that the prosecution in this case failed to exercise due diligence through the grand jury investigation, or that it filed the second complaint to evade the application of Rule 600.

Superior Court affirmed the trial court’s conclusion, reasoning that:

Here, we find no abuse of discretion or error of law by the trial court, which applied settled jurisprudence to the unique facts of Womack’s case. The trial court’s focus on “what charges the Commonwealth could have brought” when the first complaint was filed comports with the language and purpose of Rule 600. Trial Court Opinion at 32. As noted above, Rule 600’s dual purposes are to protect the interests of people who are accused of crimes and of society in ensuring timely prosecutions. Bethea, supra. The difference between the offenses charged in the complaints demonstrates that the Commonwealth did not try to circumvent Rule 600. Cf. Simms, 500 A.2d at 803–04. Therefore, Rule 600 should be construed consistently with society’s interest in punishing and deterring crime. Bethea, supra. The trial court’s assessment supports that balance—had the second complaint charged only offenses that could have been prosecuted on October 6, 2017, then the delay entailed would have violated Womack’s rule-based right to a speedy trial. We conclude that the trial court’s selection of the second complaint date was within its discretion.

We further find no abuse of discretion in the trial court’s Rule 600 calculation as applied to the time between the second complaint and the trial. See Trial Court Opinion at 35–39. The delays caused by Womack and his counsel add up to 230 days. Id. Although the trial court’s inclusion of 35 days of “judicial delay” would no longer apply under Harth, this is not dispositive, as this period was soon subsumed by the emergency suspension of Rule 600 beginning March 16, 2020. See In re General Statewide Judicial Emergency, 230 A.3d 1015, 1019 (Pa. 2020); 20th Judicial District Fifth Extended Declaration of Judicial Emergency, 33 MM 2020, at 2 (Pa. Dec. 30, 2020); Judicial District Fifth Extended Declaration of Judicial Emergency, 33 MM 2020, at 2 (Pa. Dec. 30, 2020).

We observe that Rule 600 worked in Womack’s favor when the trial court granted his motion to dismiss the first case. We are skeptical of the Commonwealth’s tactics in leaving that case open despite not intending to prosecute it. However, because the charges from the second complaint could not have been brought at the time of the first complaint, we find the Commonwealth’s diligence in prosecuting the first complaint to be irrelevant in the Rule 600 calculation in this case. Cf. Meadius, 870 A.2d at 803 (interpreting former Rule 600(G) where the Commonwealth withdrew a complaint and then filed a second complaint listing identical charges). Rather, Rule 600 applies to the charges in the second complaint based on the date of the second complaint. “Rule 600 is not the appropriate mechanism by which to grant [Womack] redress on these facts.” Trial Court Opinion at 51.

Slip op. at 16-18 (emphasis in original, footnotes omitted).

The Pennsylvania Supreme Court granted allocatur to consider the following issue:

Does Rule 600 run from the first or second criminal complaint when the first complaint is still pending against a defendant who is in pretrial detention and the second complaint is premised on grand jury proceedings that subsumed the case underlying the first complaint?

For more information, contact Kevin McKeon or Dennis Whitaker.