J-S61024-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
               v.                         :
                                          :
                                          :
 KWAMAINE WHITE,                          :
                                          :
                    Appellant             :   No. 2994 EDA 2016

            Appeal from the Judgment of Sentence May 23, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0005889-2014

BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 19, 2019

      Kwamaine White appeals from the judgment of sentence of fifteen to

forty years of imprisonment imposed following his convictions for robbery,

conspiracy, simple assault, and theft by unlawful taking.          Specifically,

Appellant claims the trial court erred in denying his motion to dismiss pursuant

to Pa.R.Crim.P. 600.     Upon review, we vacate Appellant’s judgment of

sentence and remand for further proceedings.

      Two men robbed Matthew McTeague at gunpoint on May 21, 2013, in

Philadelphia County, forcing Mr. McTeague to drive them to an ATM to

withdraw money from his account. Appellant’s fingerprints were recovered

from Mr. McTeague’s vehicle, and Mr. McTeague identified Appellant from a

photo array.    On June 25, 2013, a criminal complaint was filed against

Appellant and an arrest warrant issued.
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      In the meantime, Appellant had been arrested in an unrelated case, and

was in custody at SCI-Graterford. Approximately one week later, Detective

Timothy Tague of the Philadelphia Police Department’s Northeast Detectives

Division was assigned to bring Appellant to Philadelphia for processing in the

instant case, and secured a writ of habeas corpus for that purpose. When

Detective Tague contacted Graterford “maybe one or two months after [he]

was handed the warrant package,” he learned that Appellant had been

transferred to SCI-Camp Hill. N.T. Rule 600 Hearing, 3/15/15, at 27.

      As Detective Tague only executes arrest warrants on state prisoners

when they are located at Graterford, he followed his procedure of contacting

“a woman in Harrisburg” about having Appellant transferred back to

Graterford and then obtaining a writ of habeas corpus to bring him to

Philadelphia. Id. at 20. Detective Tague, whose primary responsibility is to

serve warrants within the Northeast Division of Philadelphia on a daily basis,

makes trips to Graterford once every three months, on average, and requests

only six inmates for each trip, as he “only ha[s] one wagon, and we can’t

transport more than six at a time.” Id. at 21. After contacting the state two

more times after the initial call to Graterford, Detective Tague “eventually”

arrested Appellant at Graterford on March 10, 2014, and brought him to

Philadelphia. Id. at 21-22.

      A preliminary hearing was scheduled for March 25, 2014, but the

complainant was unavailable. The case was held for court following a hearing


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on May 20, 2014, and Appellant was formally arraigned on June 10, 2014. At

conferences held on July 9, 2014, July 22, 2014, and September 24, 2014,

discovery was outstanding. Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600 on September 25, 2014. Therein he contended that the first

trial listing of the case, for March 9, 2015, was 247 days late under the Rule,

and that the Commonwealth had failed to exercise due diligence in arresting

Appellant and providing discovery materials. The trial court denied Appellant’s

motion after a hearing on May 15, 2014. Trial was scheduled and continued

on subsequent dates due to the request of the defense or the unavailability of

the court, and eventually commenced on March 30, 2016.

      Appellant was convicted and sentenced as indicated above. Appellant

filed a timely post-sentence motion, which the trial court denied. Appellant

filed a timely notice of appeal, and both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant presents the following question for this Court’s consideration:

“Was not [A]ppellant’s motion to dismiss pursuant to Pa.R.Crim.P. 600

improperly denied where [A]ppellant was tried long after the run date and the

Commonwealth did not exercise due diligence throughout the case, as it failed

to secure [A]ppellant’s presence and failed to provide discovery in a timely

manner?” Appellant’s brief at 3.

      We begin with a review of the applicable legal principles.

      In evaluating Rule 600 issues, our standard of review of a trial
      court’s decision is whether the trial court abused its discretion.

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       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.

       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. Bethea, 185 A.3d 364, 370 (Pa.Super. 2018) (cleaned

up).

       Pursuant to Rule 600, a defendant’s trial must occur within 365 days of

the filing of the criminal complaint. Pa.R.Crim.P. 600(A)(2)(a). That one-

year-anniversary has been termed the “mechanical run date.”              See, e.g.,


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Commonwealth v. Ramos, 936 A.2d 1097, 1102 (Pa.Super. 2007) (en

banc). In calculating whether the trial commenced within the requisite time,

“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.” Pa.R.Crim.P. 600(C)(1). However, “[a]ny other periods of delay

shall be excluded from the computation.”         Id.   The date arrived at after

excluding such periods of delay has been termed the “adjusted run date.”1

See Ramos, supra at 1102.

       The criminal complaint was filed in this case on June 25, 2013. Hence,

the mechanical run date was June 25, 2014.             Appellant’s trial did not

commence until March 30, 2016, when the jury was sworn. The trial court

found that the Commonwealth exercised due diligence throughout the

proceedings, meaning that none of the periods of delay was included in the

computation, and trial commenced within the adjusted run date. See N.T.

Rule 600 Hearing, 3/15/15, at 46.

       On appeal, Appellant challenges the trial court’s findings for the periods

both before and after he was arrested. Specifically, Appellant contends that


____________________________________________


1 A prior version of Rule 600 was rescinded and a new version adopted in
2012, with an effective date of July 1, 2013. The new version discards
distinctions of the prior rule between time that was “excusable” and that which
was “excludable.” However, the change in terminology does not affect the
calculations in this case, and cases applying the prior rule are still applicable.
See Pa.R.Crim.P. 600, Comment (Computation of Time).

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the Commonwealth did not exercise due diligence in effectuating his arrest,

and that post-arrest delays caused by the Commonwealth’s failure to provide

discovery and the unavailability of Mr. McTeague should not have been

excluded from the computation. Appellant’s brief at 6-7.

       The first and largest single period of delay was that between the filing

of the complaint on June 25, 2013, and Appellant’s arrest on March 10, 2014.

Such time is excluded from the Rule 600 calculation if police exercised due

diligence in ascertaining the whereabouts of the defendant and apprehending

him. Commonwealth v. Hunt, 858 A.2d 1234, 1241 (Pa.Super. 2004) (en

banc).      “The    Commonwealth        has    the   burden of   establishing   by a

preponderance of the evidence that it exercised due diligence throughout the

prosecution.” Commonwealth v. McCarthy, 180 A.3d 368, 375 (Pa.Super.

2018) (internal quotation marks omitted).

       In determining whether the police acted with due diligence, a
       balancing process must be employed where the court, using a
       common sense approach, examines the activities of the police and
       balances this against the interest of the accused in receiving a fair
       trial. The actions must be judged by what was done, not by what
       was not done. In addition, the efforts need only be reasonable;
       lack of due diligence should not be found simply because other
       options were available or, in hindsight, would have been more
       productive.

Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.Super. 1991).2

____________________________________________


2 For example, this Court discharged a defendant upon a speedy-trial violation
based upon a five-month delay by Pittsburgh Police in arresting him, when the
record showed that the police knew he had a criminal record but made no



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       In opposing Appellant’s Rule 600 motion, the Commonwealth offered

the testimony of Detective Tague concerning the efforts he made to execute

the arrest warrant at Graterford. As detailed above, he waited one or two

months after receiving the warrant before he attempted to arrest Appellant.

Upon discovering that Appellant was no longer at Graterford, Detective Tague

contacted a woman in Harrisburg, twice over the course of the next six or

seven months, to seek Appellant’s transfer back to Graterford, finally

effectuating the arrest 258 days after the complaint was filed.

       The trial court found that, through Detective Tague’s testimony, the

Commonwealth established due diligence. The trial court explicitly indicated

that the Transportation Procedure for State Prisoners legislation (“the Act”)

was important to its finding. Trial Court Opinion, 1/23/18, at 9 n.10.   The

trial court cited that act in support of Detective Tague’s assertion that

“detectives at Northeast Detectives Division only bring defendants to the

Criminal Justice center in Philadelphia from Graterford” and “sheriffs do not

transport inmates from a state correctional institution in another county

simply to have a defendant charged with a new case[.]” Id. at 8, 9. Rather,

unless the inmate is to be transferred for a court appearance, the procedure


____________________________________________


effort to obtain information or cooperation from probation and parole offices
in locating him, sought no cooperation from out-of-county police departments,
and waited two months to contact the Philadelphia police after being informed
by a parole officer and the defendant’s mother that he could be found at a
Philadelphia address. Commonwealth v. Collis, 404 A.2d 1320, 1323
(Pa.Super. 1979) (en banc).

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of communicating a list of six inmates to his Harrisburg contact quarterly and

transporting them back and forth from Graterford applies. Id.

     The Act regarding inmate transfers provides as follows, in relevant part:

     (1) The department shall temporarily transfer an inmate confined
     in the State correctional system to a State correctional institution
     determined by the department to be of an appropriate security
     level that is nearest to the location of the judicial proceeding.
     The department shall have the discretion to select an alternative
     and reasonably accessible State correctional institution if bed
     space limitations in the nearest State correctional institution
     prevent the temporary transfer to that institution.

     (2) The department shall not be required to temporarily transfer
     any inmate under this subsection unless all of the following apply:

           (i) A court order has been entered directing the presence of
           the inmate at a judicial proceeding.

           (ii) The court has found that the inmate’s presence is
           required at the judicial proceeding.

           (iii) The Constitution of the United States or the Constitution
           of Pennsylvania does not permit the inmate’s testimony or
           participation in the proceeding to be conducted by
           videoconferencing technology.

     (3) The department shall establish regulations for the
     implementation of this subsection in accordance with all of the
     following:

           (i) The regulations may require up to 14 days’ notice prior
           to the entry of a temporary transfer order.

           (ii) The regulations may require return of an inmate to the
           inmate’s home correctional institution upon completion of
           the judicial proceeding.

           (iii) The regulations may require that an inmate is to be
           removed from the State correctional institution by a
           government official authorized by the court directing the
           presence of the inmate for a judicial proceeding be

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              detained in the county prison if the inmate has been
              temporarily transferred more than twice in the preceding six
              months or the judicial proceeding is scheduled to last more
              than one week.

              ....

       (7) This section shall not be construed:

              (i) To prohibit the use of alternative transportation methods
              authorized by law.

              (ii) To authorize a court to designate a particular place of
              confinement or the length of confinement in the temporary
              correctional institution.

61 Pa.C.S. § 1151(d) (emphases added). 3           The regulations established

pursuant to subsection (3) provide as follows, in relevant part:

       (a) A court may request that the Department of Corrections
       (Department) temporarily transfer a State inmate for purposes
       of attending a judicial proceeding by forwarding to the
       Department’s Office of Population Management at least 14 days
       prior to the date of the judicial proceeding, an order that does the
       following:

              (1) Determines that the Constitution of the United States or
              the Constitution of Pennsylvania does not permit the
              inmate’s testimony or participation in the judicial
              proceeding to be conducted by videoconferencing
              technology and that the inmate’s presence is required for
              the judicial proceeding.

              (2) Directs that the inmate be returned to the institution
              from which he was temporarily transferred at the
              completion of the judicial proceeding.



____________________________________________


3 The trial court indicated that the law was codified at 61 P.S. § 72. However,
that statute was repealed in 2009. The current statute, quoted above, has
been in effect since October 13, 2009.

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      (b) Upon receipt of an order under subsection (a), the Department
      will transfer the inmate to the State correctional institution
      nearest to the location of the judicial proceeding that the
      Department determines to be of an appropriate security level to
      house the inmate. The Department will select an alternate,
      reasonably accessible State correctional institution to which to
      transfer the inmate if bed space limitations at the nearest State
      correctional institution prevent the inmate’s transfer to that
      institution.

37 Pa. Code § 96a.2. (emphases added).

      Further, Philadelphia County has established a detailed procedure

applicable to “writs issued and requests to transport any prisoner incarcerated

in the Pennsylvania Department of Corrections.”       Temporary Procedure for

State Prisoners, https://www.courts.phila.gov/pdf/criminal-reports/Act-82-

protocol.pdf, at ¶ 1. The processes contained include the following:

      2.    Draft Bus List. Court Administration shall generate a draft
      Bus List in CPCMS for all defendants in state custody (including
      prisoners housed at SCI-Graterford, SCI-Cambridge Springs, and
      SCI-Muncy) who have upcoming preliminary hearings, trials
      or sentencings for a particular week in Municipal Court or
      Common Pleas Court. The draft bus list shall be generated 6
      weeks ahead of the scheduled court date. The list shall constitute
      a preliminary list of defendants eligible for a temporary transfer
      pursuant to Act 82 of 2008. . . .

      3.    Sheriff   Information.     Court    Administration       shall
      simultaneously request from the Sheriff a list of all writs already
      issued for defendants and witnesses for the same week as the
      draft bus list.

      4.    Adding/Removing Prisoners from the Draft Bus List. Copies
      of the draft bus list and writ list shall be forwarded to the Director
      of the Criminal Justice Prison Population Unit, the District Attorney
      and Defender Association for review. Court Administration may
      implement procedures for adding or removing defendants or
      witnesses to the draft bus list pursuant to the request of judges,
      the Director of the Criminal Justice Prison Population Unit, the

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     District Attorney, the Defender, private defense counsel      or other
     criminal justice stakeholders.      Requests to add or         remove
     defendants from the list shall be made by e-mail to the       Director
     of the Criminal Justice Prison Population Unit, with a copy   to Court
     Administration, the District Attorney, and the Defender.

           ....

     6.    Review and Signature of Temporary Transfer Order/Notice.
     The Director of the Criminal Justice Prison Population Unit (in
     consultation with Court Administration and other criminal justice
     stakeholders) shall develop the final temporary transfer list and
     forward to Court Administration a draft “INMATE TEMPORARY
     TRANSFER ORDER AND NOTICE.” This order and notice shall
     include a list of all defendants to be temporarily transferred,
     arranged in order of their respective inmate number, directing the
     Department of Corrections (DOC) to transfer the defendants to a
     nearby state correctional institution (usually SCI-Graterford for
     males and SCI-Muncy for females) for their upcoming cases.
     The Supervising Judge of Common Pleas Court and the President
     Judge of Municipal Court (or temporary designee) shall review
     the draft order/notice and, if appropriate, shall sign the
     order/notice on behalf of both Courts.

           ....

     9. Draft Writ.    The Director of the Criminal Justice Prison
     Population Unit shall prepare a draft “Order and Writ of
     Transportation” writ for all of the defendants to be brought from
     SCI-Graterford or other designated SCI each day. No later than
     two business days prior to transportation/court date, the Director
     of the Criminal Justice Prison Population Unit shall forward the
     draft order/writ to Court Administration for review and any
     necessary modifications. Court Administration shall be provided
     the draft order/writ for review and signature of the designated
     judge or trial commissioner.

           ....

     13. Centralization of Writs. It is the intent of the Court to
     centralize the issuance of all writs and transportation orders
     relating to prisoners in the custody of the Department of
     Corrections. At the present time, writs may continue to be issued


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      by individual judges provided that they are issued at least 6 weeks
      prior to the hearing date, and copies of the writ are provided
      that same day to Court Administration and the Sheriff. Any other
      requests for writs for prisoners in the custody of the Department
      of Corrections that do not meet those requirements may be issued
      only by the Supervising Judge of Common Pleas Court (or
      designee) or the President Judge of Municipal Court (or designee).
      These provisions shall not apply to writs relating to prisoners in
      the Philadelphia Prison System, other county jails, or federal
      prisons.

Id. at ¶¶ 2-4, 6, 9, 13 (emphases added).

      From the plain language of the above protocols, they apply to the

transportation of inmates in the custody of the DOC to court for judicial

proceedings. There is no indication that the policies establish the procedure

for enabling Philadelphia Police to formally arrest an incarcerated defendant,

an event that occurs before any judicial proceedings are scheduled. Further,

Detective Tague’s testimony that he forwards lists of inmates he seeks to

arrest to someone in Harrisburg confirms that he did not follow the above

procedures, which call for lists generated by Court Administration informed by

lists of outstanding writs supplied by the Sheriff, in attempting to secure

Appellant’s presence at Graterford for the arrest.       Accordingly, we must

conclude that the trial court erred to the extent that it found these regulations

“important in understanding why [it] found the Commonwealth exercised due

diligence.” Trial Court Opinion, 1/23/18, at 9 n.10.

      Nonetheless, for Rule 600 purposes, administrative failures by the state

prison or the court causing the failure to transfer a prisoner are not

attributable to the Commonwealth.       See Commonwealth v. Thompson

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(“Thompson I”), 93 A.3d 478, 489 n.1 (Pa.Super. 2014).           However, the

Commonwealth must establish that it took the appropriate steps to attempt

to secure the prisoner’s presence. Id. Whether the record evidences such

efforts may make the difference in the due diligence determination. Compare

Commonwealth v. Mines, 797 A.2d 963, 965 (Pa.Super. 2002) (affirming

finding of due diligence where a writ had been prepared but was cancelled

because no beds were available in the Philadelphia prison system), with

Commonwealth v. Thompson (“Thompson II”), 136 A.3d 178, 183

(Pa.Super. 2016) (holding the Commonwealth failed to establish due diligence

where there was no evidence that a writ was ever requested).

       Although we conclude that the trial court erred in this case in relying

upon inapplicable regulations to support a finding of due diligence, we are

unable to make our own determination from the record before us.              For

example, while the transcript from the Rule 600 hearing indicates that the

records of the court clerk and other documents were admitted into evidence,

see N.T. Rule 600 Hearing, 3/15/15, at 36, they are not included in the

certified record.    As such, we cannot determine what the administrative

records show regarding the issuance of writs or orders to secure Appellant for

arrest.

       Moreover, without the complete record, we are unable to examine

Appellant’s claims as to the second group of delays at issue. Appellant argues

that   post-arrest   delays   in   commencing   trial   were   caused   by   the


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Commonwealth’s failure to provide discovery, and no delays were attributable

to him. Appellant’s brief at 21-24. However, the Commonwealth indicates

that some requested discovery did not exist and that a subpoena was issued

to   comply with other requests, and the trial court states that Appellant

executed Rule 600 waivers for some of the time periods at issue.            See

Commonwealth’s brief at 12-14; Trial Court Opinion, 1/23/18, at 11. We are

unable to review the trial court’s resolution of these issues without examining

the record before it at the Rule 600 hearing.

      Hence, we cannot ascertain from the record that the trial court’s finding

that the Commonwealth exercised due diligence in bringing Appellant to trial

was justified.   It was the Commonwealth’s burden to prove due diligence.

McCarthy, supra at 375.      Yet it was Appellant’s duty to ensure that the

certified record included all items necessary for our review. Commonwealth

v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (en banc).         However, if the

absence from the record of documents that obviously exist is caused by an

omission of court personnel, this Court will not deny an appellant review of

the merits of his claim. Id. at 8. We simply cannot determine at this stage

whose compliance was deficient.

            In these circumstances, we conclude that the most prudent
      course of action is to remand this matter for a hearing for further
      consideration of the [Commonwealth’s diligence in arresting
      Appellant]. If it is adequately demonstrated by the
      Commonwealth that [it took the steps necessary under applicable
      law to arrest Appellant while he was in the custody of the DOC],
      no further inquiry is required, . . . the trial court should leave
      untouched its holding that no Rule 600 violation occurred[, and it

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       should reimpose Appellant’s judgment of sentence]. If the
       Commonwealth cannot provide evidence that [it followed the
       applicable procedures to arrest Appellant while he was in DOC
       custody], the trial court should then determine whether Appellant
       was tried within the time period prescribed by Rule 600. If he was
       not tried within the prescribed time period, the trial court should
       then determine whether the Commonwealth acted with due
       diligence [and/or whether the delay in trying] Appellant was
       completely beyond the Commonwealth’s control.

Thompson I, supra at 489.                 If the Commonwealth cannot establish

compliance with Rule 600, the trial court must grant Appellant’s motion and

discharge him.4

       Judgment of sentence vacated. Case remanded for further proceedings

consistent with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




____________________________________________


4 The hearing upon remand is limited to the time period between the filing of
the complaint and Appellant’s arrest. As discussed above, we have declined
to address the merits of Appellant’s arguments as to the exclusion of post-
arrest delays. Should the trial court deny Appellant’s Rule 600 motion after
the hearing following remand, and Appellant decides to appeal that ruling, he
may, upon securing a complete record for this Court’s review, challenge the
trial court’s rulings as to both periods of delay in the subsequent appeal.

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