A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

Commonwealth v. Colon, 2014 WL 895216, 2014 PA Super 45, March 07, 2014, NO. 3433 EDA 2012, is an appeal from a Judgment of Sentence entered by Judge Palumbo in the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0007368–2012. The case was before Judges ALLEN, STABILE, and STRASSBURGER. Judge Allen wrote the Opinion for the Panel with no dissent. The Philadelphia Public Defender’s Office represented the Appellant.

In this case, the criminal complaint was filed on October 19, 2009. Thus, the mechanical run date for purposes of Rule 600 was October 19, 2010 (365 days after the criminal complaint was filed). The trial did not commence until October 15, 2012, after 1092 days had passed since the filing of the complaint, and well after the expiration of the 365–day period set forth in Rule 600. With regard to any excludable delay attributable to Appellant, the Appellant requested five continuances between August 4, 2011 and May 4, 2012. On July 26, 2012, the Appellant requested new counsel who was not appointed until August 9, 2012, with trial finally commencing on October 15, 2012. Thus, a delay of 438 days (approximately 14 1/2 months) between August 4, 2011 and October 15, 2012 is potentially attributable to Appellant’s requests for continuances and change of counsel. However, these delays attributable to Appellant occurred well after 365 days had already passed since the filing of the complaint, and have no bearing on the Commonwealth’s failure to commence trial before the expiration of the mechanical run date of October 19, 2010. There was no other ‘excludable’ delay attributable to Appellant to account for the Commonwealth’s failure to commence trial before the 365–day period expired.

Although the Commonwealth was aware of Appellant’s location at the Houtzdale State Correctional Institution, there was nothing in the record to indicate that it made any efforts after the filing of the complaint to ensure that the Appellant was brought to trial within 365 days. Thus the Court found that the Commonwealth failed to exercise the requisite due diligence. Because there was no evidence that the delay was caused by circumstances beyond the Commonwealth’s control, the Appellant’s Rule 600 motion should have been granted. The Court noted that it need not consider whether there existed misconduct on the part of the Commonwealth in an effort to evade the fundamental speedy trial rights of the accused, as due diligence rather than misconduct was the relevant criteria.

Moreover, the Court disagreed with the trial court’s suggestion that the Appellant was not entitled to relief because he did not challenge the delay at the earliest opportunity. A defendant has no duty to object when his trial is scheduled beyond the Rule 600 time period so long as he does not indicate that he approves of or accepts the delay. Here, nothing in the record indicated that the Appellant approved of or accepted the delay. Therefore, his failure to object at the earliest opportunity did not preclude him from obtaining Rule 600 relief.

Since it was undisputed that a Rule 600 violation occurred as a result of the Commonwealth’s failure to exercise due diligence to bring the Appellant to trial within 365 days of the filing of the complaint, the Court concluded that the trial court erred in denying the Appellant’s Rule 600 motion. Therefore, the Court reversed the denial of the Appellant’s motion to dismiss, vacated the judgment of sentence and discharged the Appellant.

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