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March 6, 2026 Get Citation Alerts Download PDF Add Note

Com. v. Holly, M.

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 1776 EDA 2024
• Precedential Status: Non-Precedential

• Judges: Panella

• Opinion

• Authorities (7)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Combined Opinion

                        by [Jack A. Panella](https://www.courtlistener.com/person/8243/jack-a-panella/)

J-S47009-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS K. HOLLY :
:
Appellant : No. 1776 EDA 2024

Appeal from the Judgment of Sentence Entered May 21, 2024
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0000871-2023

BEFORE: PANELLA, P.J.E., OLSON, J., and BECK, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED MARCH 6, 2026

Marcus K. Holly appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas on May 21, 2024, following his

convictions for simple possession and possession with the intent to deliver

(“PWID”).1 On appeal, Holly challenges the trial court’s denial of his pretrial

motion to dismiss the charges against him pursuant to Pennsylvania Rule of

Criminal Procedure 600 (“Rule 600”). After careful review, we affirm.

As this case involves the application of Rule 600, we need not recite the

facts underlying the crimes charged. For purposes of this appeal, we note that

on June 30, 2022, a criminal complaint was filed charging Holly with multiple

---

1 35 P.S. § 780-113(a)(16), 35 P.S. § 780-113(a)(30).
J-S47009-25

drug possession and firearm charges following a traffic stop of Holly’s vehicle

during which narcotics were found in Holly’s vehicle.

On July 20, 2022, the preliminary hearing was continued by defense

request due to the unavailability of defense counsel. On September 16, 2022,

the preliminary hearing was again continued, by Commonwealth request,

when a necessary police officer witness failed to appear. On October 19, 2022,

at the rescheduled preliminary hearing, the police officer witness checked in

with the courtroom but was testifying in another courtroom when the case

was called. Accordingly, the Commonwealth withdrew the charges at that

time.

On November 30, 2022, the Commonwealth refiled the complaint. On

December 22, 2022, the preliminary hearing was continued by defense

request, due to defense counsel’s unavailability. A preliminary hearing was

finally held on January 31, 2023 and discovery was marked as complete on

February 8, 2023.

On May 7, 2023, Holly filed an omnibus pre-trial motion to suppress the

evidence against him, arguing the officer who conducted the traffic stop lacked

reasonable suspicion to detain Holly, and lacked probable cause to search

Holly, his bag, and his vehicle, and thereafter arrest him. Accordingly, Holly

sought suppression of all physical evidence obtained from the search.

On September 18, 2023, on the date scheduled for a waiver trial, the

police officer witness, who had been present in the courtroom, left without

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notice to the Commonwealth or leave of the trial court. Accordingly, the waiver

trial was continued.

On January 23, 2024, Holly filed a motion to dismiss the case against

him pursuant to Rule 600, alleging he was entitled to dismissal because “485

days of Rule 600 time has elapsed since the filing of the complaint, and the

Commonwealth has not been duly diligent in bringing [Holly] to trial.” Rule

600 Motion to Dismiss, 1/23/24, at 3-4. Specifically, Holly argued that the

Commonwealth had been repeatedly not ready for trial because “witnesses

failed to appear and left court without permission …” Id. at 4.

On January 24, 2024, a Rule 600 hearing was held. Defense counsel

argued it had been 573 days since the complaint had been filed, and that

without time attributable to defense continuances, 485 days were attributable

to either normal progression or the Commonwealth. See N.T., Motion Hearing,

1/24/24, at 3, 7. Defense counsel argued the Commonwealth was not duly

diligent in bringing him to trial based on three preliminary hearing continuance

requests due to the police officer witness either failing to appear or leaving

without notice. See id. at 8. Defense counsel asserted it is not just the district

attorney who must be duly diligent, but the Commonwealth of Pennsylvania

as a whole, and that a police officer is an arm of the Commonwealth. See id.

at 8-9. Accordingly, defense counsel argued the Commonwealth was not duly

diligent because the police officer was not diligent. See id.

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The Commonwealth argued they acted with due diligence, and

presented and marked for evidence the subpoena forms for the second and

third trial listings to show that the police officer witness had been subpoenaed

to be there and be available for those dates. See id. at 11.

In response, defense counsel stated he reviewed the subpoena forms,

and conceded that the officer had been subpoenaed on September 16 and

October 19. See id. at 12. Defense counsel admitted that there was proof that

the officer was subpoenaed and accordingly the district attorney’s office was

possibly duly diligent. See id. at 13. Defense counsel argued, however, that

the Commonwealth “in its entirety” must be diligent, and that the police

department is an arm of the Commonwealth. See id.

The trial court stated it was denying the Rule 600 motion. The trial court

concluded it could not blame the district attorney, who had subpoenaed the

officer, for the officer’s decision to leave. See id. at 14; see also id. at 15 (“I

can’t say that … the Commonwealth [] said for them to leave. They just

basically did that on their own. They kind of went rogue. They know that when

you get a subpoena, you’re supposed to come here and be here from 9:00 to

5:00 if that’s what we need you to do, that’s what you’re supposed to do.”).

The court explained that it could not find that the district attorney had the

ability to control the police officers; aside from subpoenaing the officers, there

was nothing else that the Commonwealth could have done to assure the

presence of the police officers. The trial court stated:

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And I don’t know that the DA really has the ability to control the
police officers. If they come - - if they get their subpoena and they
decide not to come . . . It’s not, you know what I’m saying? It’s
not they can go and pick them up. If they come and they leave,
you know, they’re doing cases and they go out to the anteroom
and they’re gone.

See id. at 16-17

Following the Rule 600 hearing, the court immediately proceeded to a

suppression hearing. After taking testimony from the officer who conducted

the traffic stop, the court granted suppression of a gun, but denied

suppression of marijuana found during the search. The parties agreed to

incorporate the suppression hearing in order to proceed directly to a bench

trial. Following additional testimony from Holly and a detective who executed

a search warrant on Holly’s vehicle, the court found Holly guilty of simple

possession and PWID. The remaining charges were nolle prossed. On May 21,

2024, the court sentenced Holly to 18 months’ reporting probation. This timely

appeal followed.

On appeal, Holly raises the single issue of whether the trial court erred

in denying his pretrial motion to dismiss pursuant to Rule 600. Our standard

of review of a trial court’s denial of a Rule 600 motion is as follows:

In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill will,
as shown by the evidence or the record, discretion is abused.

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J-S47009-25

The proper scope of review is limited to the evidence on the record
of the Rule 600 evidentiary hearing, and the findings of the trial
court. An appellate court must view the facts in the light most
favorable to the prevailing party.

Additionally, when considering the trial court’s ruling, this Court is
not permitted to ignore the dual purpose behind Rule 600. Rule
600 serves two equally important functions: (1) the protection of
the accused’s speedy trial rights, and (2) the protection of society.
In determining whether an accused’s right to a speedy trial has
been violated, consideration must be given to society’s right to
effective prosecution of criminal cases, both to restrain those
guilty of crime and to deter those contemplating it. However, the
administrative mandate of Rule 600 was not designed to insulate
the criminally accused from good faith prosecution delayed
through no fault of the Commonwealth.

So long as there has been no misconduct on the part of the
Commonwealth in an effort to evade the fundamental speedy trial
rights of an accused, Rule 600 must be construed in a manner
consistent with society’s right to punish and deter crime. In
considering these matters ... courts must carefully factor into the
ultimate equation not only the prerogatives of the individual
accused, but the collective right of the community to vigorous law
enforcement as well.

Commonwealth v. Faison, 297 A.3d 810, 821 (Pa. Super. 2023) (citation,

brackets, and emphasis omitted).

Generally, under Rule 600, the Commonwealth must bring a defendant

to trial within 365 days of filing the criminal complaint. See Pa.R.Crim.P.

600(A)(2)(a).

In a Rule 600 analysis, the “mechanical run date” is 365 days after
the complaint was filed. The “adjusted run date” is then calculated
by adding any time that is “excluded from the computation” under
Rule 600(C)(1). If a defendant is not brought to trial by the
adjusted run date, the case is dismissed.

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J-S47009-25

Commonwealth v. Malone, 294 A.3d 1247, 1249 (Pa. Super. 2023)

(citations omitted). In determining the adjusted run date, Rule 600 further

explains:

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.

Pa.R.Crim.P. 600(C)(1); see also Pa.R.Crim.P. 600, cmt. (“If the delay

occurred as the result of circumstances beyond the Commonwealth’s control

and despite its due diligence, the time is excluded.”) (citations omitted).

Importantly, we note that, in 2012, the Pennsylvania Legislature

enacted the new Rule 600, as outlined above, effective as of July 1, 2013. The

general dictates of the new Rule 600 remained the same as they were prior

to adoption, but the prior distinctions between excludable time and excusable

delay were abandoned for a streamlined review of the Commonwealth’s due

diligence, with a failure to exercise due diligence being considered “includable

time.” Commonwealth v. Wiggins, 248 A.3d 1285, 1289 (Pa. Super. 2021)

(citation omitted).

Our Supreme Court recently explained that the first sentence of Rule

600(C)(1) provides “the general rule” and establishes “two requirements that

must be met for delay to count toward the 365-day deadline: (1) the

Commonwealth caused the delay and (2) the Commonwealth failed to exercise

due diligence.” Commonwealth v. Lear, 325 A.3d 552, 560 (Pa. 2024)

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J-S47009-25

(citations and internal quotation marks omitted). The Lear Court clarified that

“the causation analysis precedes the due diligence inquiry, and it is only when

the Commonwealth both caused the delay and lacked due diligence that the

delay is properly included in the Rule 600 calculation.” Id. at 560 n.7.

“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.” Commonwealth v.

Selenski, 994 A.2d 1083, 1089 (Pa. 2010) (citation omitted). Due diligence

must be demonstrated by a preponderance of the evidence. See Wiggins,

248 A.3d at 1289. Rule 600 “expressly calls upon a trial court to assess the

Commonwealth’s due diligence throughout the life of a case, when faced with

a claim that the Commonwealth violated a defendant’s speedy trial rights.”

Commonwealth v. Harth, 252 A.3d 600, 617 (Pa. 2021).

Addressing the second sentence of Rule 600(C)(1), the Lear Court

explained that “‘any other periods of delay’—meaning any periods of delay not

caused by the Commonwealth or not resulting from the Commonwealth’s lack

of due diligence—are ‘excludable’ and are removed from the computation of

the Rule 600 deadline.” Lear, 325 A.3d at 560 (brackets and citation omitted).

Here, the mechanical run date—365 days from the date of the filing of

the complaint—was June 30, 2023. Holly concedes that the defense caused

periods of delay totaling 144 days, leading to an adjusted run date of

November 21, 2023. See Appellant’s Brief, at 11. Holly argues this still leaves

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J-S47009-25

429 days of includable time, chargeable to normal progression of the case or

the Commonwealth, in violation of Rule 600. Holly’s argument implicates three

disputed timeframes:

1. September 16, 2022: Commonwealth continuance-its officer
   left the courtroom “without permission or notice.”

2. October 19, 2022: Commonwealth withdrew prosecution when
   its officer again failed to appear and refiled over a month later.

3. September 18, 2023: Commonwealth continuance-trial was
   delayed 128 days after the officer left the courtroom at 11:12
   a.m.

Id.

The substance of Holly’s argument is distilled on only one page of his

brief, and hinges on his assertion that although the Commonwealth marked

police witness subpoenas as “C-1” for support at the Rule 600 hearing, no

documents were actually admitted into evidence. Holly seems to argue that,

because the subpoenas apparently do not appear in the record as an exhibit,

that there is no evidence physically in the record to prove the Commonwealth’s

argument−that witness unavailability was beyond its control−and that legal

argument or prosecutorial statements alone are not sufficient to prove Rule

600 diligence. See Appellant’s Brief, at 12 (“Prosecutorial statements are not

evidence, and Rule 600 diligence cannot be proven by bald assertions.” See

Commonwealth v. Ehredt, 401 A.2d 358, 360—61 (Pa. 1979) (“[A] bare

statement by the Commonwealth’s attorney that several witnesses are

‘unavailable,’ without more, does not establish ‘due diligence’ within that

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standard.”); see also Commonwealth v. Peterson, 19 A.3d 1131, 1138

(Pa. Super. 2011) (en banc) (unavailability must be supported by evidence;

the Commonwealth acts with due diligence when it issues subpoenas for

officer-witnesses, albeit that the officer-witnesses do not appear.).

At the Rule 600 hearing, the Commonwealth presented the 590 /

subpoena forms for the police officer witness to appear at the second and third

trial listings, to show that they had been duly diligent in making sure the

officer was subpoenaed and available for those dates to get the case moving

forward. See N.T., Motions Hearing, 1/24/24, at 11. In response, defense

counsel stated he was reviewing the forms, and thereafter conceded that the

officer had been subpoenaed on September 16 and October 19. See id. at 12;

see also id. at 13 (“And when you look at those two dates where we have

proof that the officers were subpoenaed on 9/16 and it says police officer was

present but left without permission or notice. And then you have the October

19th where we also have the officer subpoenaed and it says police officer

failed to appear.”).

Accordingly, defense counsel did not dispute the existence of the

subpoenas, and did not object to their admission. Instead, defense counsel’s

only argument was that the police department is an arm of the

Commonwealth, so even if the District Attorney’s office were duly diligent by

issuing the subpoenas, the police department was not duly diligent, and

therefore the Commonwealth as a whole was not duly diligent. See id. at 13.

• 10 - J-S47009-25

Based on Holly’s concessions during the hearing, we find his current

argument that the subpoenas essentially do not exist for Rule 600 purposes

to be incredibly disingenuous at this juncture. As Holly conceded to the

existence of the subpoenas, and did not dispute that the Commonwealth had

subpoenaed the officer on two separate dates, his current argument that the

Commonwealth failed to provide evidence regarding witness unavailability is

without merit, as the issuance of the subpoenas was undisputed. The evidence

of record established that the officer had been subpoenaed and therefore it

was more than a mere assertion by the Commonwealth attorney; it was a

concession and stipulation by defense counsel. Nothing more was necessary

in order for the trial court to make a finding that the officer had been

subpoenaed but was not present. Therefore, any claim in this regard is without

merit.

Moreover, although neither party officially offered the subpoenas into

evidence, both parties referenced the subpoenas in argument to the court.

Additionally, at no time during the Rule 600 hearing did Holly object to the

court’s consideration of the subpoenas. Furthermore, the record shows the

trial court considered the subpoenas as part of its decision. As such, we

conclude that the existence of the subpoenas is within the scope of our review,

and furthermore that Holly waived any claim that the subpoenas should not

be considered when no objection was made at the Rule 600 hearing. See

Commonwealth v. Jones, 271 A.3d 452, 457 (Pa. Super. 2021) (“Where a

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party does not object to the trial court's consideration of items not formally

admitted into evidence despite notice that the trial court viewed the items as

evidence on which it could make findings, the objection to consideration of the

unadmitted items is waived.”) (citation omitted).

As Holly’s sole claim on appeal lacks merit, or otherwise is waived, we

affirm the judgment of sentence.

Judgment of sentence affirmed.

Date: 3/6/2026

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