In Commonwealth v. Wendel, 2017 Pa.Super 178 (June 7, 2017) a complaint charging the defendant with simple assault was filed on February 5, 2015. Defendant opted to go to trial and jury selection was scheduled over a year later on February 8, 2016. Defendant took no postponements during this time, but his Preliminary Hearing postponed one week because the officer was unavailable due to training. On the day of trial, defendant file a motion to dismiss pursuant to Pa.R.Crim.P. 600 (“Rule 600”). Rule 600 is the codification of Pennsylvania’s right to a speedy trial.
In pertinent part, 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.” However, the Rule also provides that not all time that passes after the complaint is filed counts towards the 365 days. In fact, all periods of delay are excluded unless the delay is “caused by the Commonwealth when the Commonwealth has failed to exercise due diligence.” Pa.R.Crim.P. 600(C)(1).
In light of the above, Courts employ a specific process to determine if Rule 600 requires dismissal of charges against a defendant. The first step is to determine the start date from which the defendant must be tried in 365 includable days. The second step is to determine whether any time that has passed is excludable. Next, the court adds the excludable time to arrive at final speedy trial date. If the trial takes place after this date, the court applies a due diligence analysis where any period of delay “outside control of the Commonwealth and not the result of the Commonwealth’s lack of diligence” results in an extension of the final run date. Whether the Commonwealth exercised due diligence “is a fact-specific concept that must be determined on a case-by-case basis” and only requires a “showing by the Commonwealth that a reasonable effort has been put forth.”
At issue in Wendel was whether the week-long delay of the Preliminary Hearing due to the officer’s unavailability should be included in the 365-day computation. The Court reasoned that the officer’s unavailability was an “excusable delay” that occurred as a result of circumstances beyond the Commonwealth’s control despite its due diligence. According to the Court, the Commonwealth cannot be held to be acting without due diligence when a witness, including a necessary police witness, is unavailable. See Commonwealth v. Hyland, 875 A.2d 1175, 1191 (Pa.Super. 2005) (where trooper, who was affiant and lead investigator, was deployed to Iraq, the time attributed thereto was “excusable delay” since it was beyond the control of the Commonwealth); Commonwealth v. Brawner, 553 A.2d 458 (Pa.Super. 1989) (where police officer’s unavailability due to vacation was beyond the Commonwealth’s control, the extension of trial date was “excusable time”).