The Superior Court, in the case of Commonwealth v. Thompson, No. 3139 EDA 2014 (March 30, 2016), has held that the Commonwealth cannot establish “due diligence” that it sought a defendant’s presence at trial by simply presenting testimony regarding the habit and practice of the DA’s Office regarding the issuance of writs to secure the presence of the defendants.


Thompson filed an appeal after receiving a sentence following his conviction for possession with intent to deliver a controlled substance. Prior to trial, Thompson filed a Motion to dismiss his case pursuant to Rule 600 which outlines what are commonly referred to as one’s “Speedy Trial” rights. Thompson’s Motion was denied.

After being sentenced, Thompson challenged the trial court’s Rule 600 analysis. Specifically, the trial court recognized that two, significant periods of delay occurred when Thompson had not been transported from state custody, resulting in an aggregate delay of approximately 309 days. The first period was from December 20, 2010, until May 9, 2011 (140 days); the second from May 9, 2011, until October 25, 2011 (169 days). Thompson claimed these delays, which the trial court deemed “administrative error” and thus excusable, should have been attributed to the Commonwealth instead.

Upon review, a unanimous panel of the Superior Court concluded that there was no evidence of record to support the trial court’s cursory analysis. Therefore, the case was remanded and the Superior Court specifically directed the Commonwealth to demonstrate that it “sought a writ from the trial court to secure Thompson’s presence in court” on May 9, 2011.

At that hearing, an Assistant District Attorney (ADA) testified regarding the habit and custom of that office regarding the writ process. After the hearing, the trial court denied Appellant’s Rule 600 challenge, finding the testimony of the ADA credible and concluding that the Commonwealth had demonstrated by a preponderance of evidence that it had exercised due diligence in securing Thompson’s presence for trial.


Whether the lower court committed an abuse of discretion by denying Appellant’s Rule 600 Motion to dismiss?


The credible testimony of an ADA is, alone, insufficient to establish the Commonwealth’s due diligence that it sought a defendant’s presence at trial.



The Superior Court first outlined the general law regarding Rule 600 analysis. Rule 600 requires that a trial shall commence within 365 days from the date on which the complaint is filed, i.e. – the mechanical run date. However, those periods of delay caused by a defendant are excluded from the computation of the length of time of any pretrial incarceration. Following these exclusions, if any, we arrive at an adjusted run date by extending the mechanical run date to account for these exclusions. Any other delay that occurs, despite the Commonwealth’s due diligence, is deemed excusable and results in further adjustments to the effective run date.

To establish that a delay is excusable, the Commonwealth must demonstrate that it proceeded with due diligence by a preponderance of the evidence. Due diligence is fact-specific, to be determined case-by-case; it does not require perfect vigilance and punctilious care, but merely a showing the Commonwealth has put forth a reasonable effort.

As applied to Thompson’s case, the Superior Court made every effort not to disturb the trial court’s finding that the ADA’s testimony was credible. Nonetheless, the Superior Court concluded that this testimony, credible or not, “did not further inform the [trial] court.”

The Superior Court concluded that mere assertions of due diligence are insufficient, rather due diligence requires affirmative action. Thus, regardless of whether it was the common practice or standard procedure for the Commonwealth to request a writ for a defendant’s transportation … the issue here was whether the Commonwealth did so on a specific date. It was unable to do so. In particular, the Superior Court found the lack of any notation in the district attorney’s file troubling. This failure to keep adequate records of its efforts to secure Appellant’s presence at trial militated against any conclusion the Commonwealth acted with due diligence in this case.

DISCLAIMER – The information contained in this article is for general guidance on the subject matter only. The application and impact of laws can vary widely based on the specific facts involved. Given the changing nature of laws, rules and regulations, and the inherent hazards of electronic communication, there may be delays, omissions or inaccuracies in information in this article. Case summaries are primarily excerpted directly from the decisions authored by the Courts. The decisions are cited and linked and the reader is encouraged to read the entire decision. Accordingly, the information in this article is provided with the understanding that the authors and publishers are not herein engaged in rendering legal or other professional advice and services. As such, it should NOT be used as a substitute for consultation with a McMahon & Winters Law Firm attorney. Before making any decision or taking any action, you should always consult with a McMahon & Winters Law Firm attorney.