J-S36028-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
                v.                        :
                                          :
                                          :
 WALLACE FLOYD KELCE, JR.                 :   No. 1443 MDA 2018

                Appeal from the Order Entered July 30, 2018
   In the Court of Common Pleas of Lycoming County Criminal Division at
                     No(s): CP-41-CR-0001956-2007


BEFORE:       PANELLA, P.J., SHOGAN, J., and PELLEGRINI*, J.

MEMORANDUM BY SHOGAN, J.:                      FILED DECEMBER 16, 2019

      Appellant, the Commonwealth of Pennsylvania (“the Commonwealth”),

appeals from the July 30, 2018 order granting Wallace Floyd Kelce, Jr.’s

(“Kelce”) Pa.R.Crim.P. 600 motion to dismiss and dismissing the charges

against him with prejudice. After careful review, we affirm.

      The trial court summarized the relevant procedural and factual history,

as follows:

            On August 10, 2007, [Kelce] allegedly drove a vehicle after
      imbibing a sufficient amount of alcohol that he was rendered
      incapable of safely driving. At that time, [Kelce] resided at 25
      Sweetbriar Drive, Newport News, VA 23606. The police filed a
      criminal complaint charging [Kelce] with Driving Under the
      Influence (DUI) and related offenses on September 20, 2007. The
      preliminary hearing was scheduled for November 5, 2007, but
      [Kelce] failed to appear. The Magisterial District Judge held the
      preliminary hearing in [Kelce’s] absence and requested that a
      bench warrant be issued by the court of common pleas. A bench
      warrant was issued on November 13, 2007. The bench warrant


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     was vacated on May 11, 2018, and [Kelce] was released on
     unsecured bail.

           On May 31, 2018, [Kelce] filed a motion to dismiss pursuant
     to Rule 600. On July 20, 2018, the court held a hearing and
     argument on [Kelce’s] motion. On July 30, 2018, the court
     granted the motion, finding that the Commonwealth had not met
     its burden establishing proper notice or due diligence.

                                  * * *

           At the hearing, the Commonwealth did not present any
     testimony.     Instead, the Commonwealth introduced three
     exhibits. Commonwealth Exhibit 1 was the first page of the
     transcript from the Magisterial District Judge (MDJ), which in Box
     20 indicated that the summons was issued on 9/28/07 and in Box
     22 indicated that the summons was returned on 10/09/07.
     Commonwealth Exhibit 2 was the bench warrant issued by [the
     court of common pleas of Lycoming County] for [Kelce’s] failure
     to   appear    at   the   preliminary      hearing  on   11/5/07.
     Commonwealth’s Exhibit 3 was the DL-26 chemical test warnings
     form signed by [Kelce], which listed [Kelce’s] address as “25
     Sweetbriar Drive, Newport News, VA 23606-3904.”

            [Kelce] testified he never received the summons, either by
     certified mail or first class mail. In fact, he stated he never
     received any mail from the MDJ. He also testified that he was not
     aware of the charges, the preliminary hearing date or the bench
     warrant until he was arrested by the Newport News police in May
     of 2018. The police told him he was being arrested for failure to
     appear in Pennsylvania and took him before a judge. The judge
     released him, and he returned to Pennsylvania and voluntarily
     surrendered on May 11, 2018.            [Kelce] admitted that 25
     Sweetbriar Drive was his address in the fall of 2007 and continued
     to be his address for about a year thereafter at which point he
     moved to 77 Middlesex Road and filed the appropriate change of
     address forms with the United States Postal Service. Throughout
     this case, [Kelce] has resided in Newport News, Virginia. [Kelce]
     stated that if he had received the summons, he “would have been
     there” for the preliminary hearing.

           [Kelce] argued that he was never aware of the charges and
     that once he became aware, he voluntarily surrendered. [Kelce]
     claimed that the Commonwealth must prove that he was served

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     with the complaint and that it took reasonable and diligent efforts
     to locate him; without such proof it would be “unfair” to prosecute
     [him] almost 11 years after the alleged crime. [Kelce] asserted
     that the Commonwealth violated Rule 600 by not bringing him to
     trial within one year of the date the charges were filed against
     him.

           The Commonwealth argued that all of the time after the
     bench warrant was issued should be excluded.                   The
     Commonwealth asserted that the transcript from the MDJ showed
     that the summons was properly served. The Commonwealth
     further argued that once the bench warrant was issued, it no
     longer had a duty to exercise due diligence to locate [Kelce].

Trial Court Opinion, 12/13/18, at 1–4.

     After reviewing the evidence and considering the parties’ arguments,

the trial court determined that “the Commonwealth did not establish proper

notice or due diligence.” Trial Court Opinion, 12/13/18, at 9. Accordingly,

the trial court granted Kelce’s Rule 600 motion and dismissed the criminal

charges pending against him with prejudice.      The Commonwealth filed a

motion for reconsideration, which the trial court denied on August 18, 2018.

On December 13, 2018, the trial court filed a Pa.R.A.P. 1925(a) opinion in

support of its order dismissing the criminal charges under Rule 600.

     The Commonwealth raises a single issue for our consideration:

           Whether the trial court erred when it dismissed the charges
     against [Kelce] pursuant to Rule 600, when the Magisterial District
     Court proceeded with a preliminary hearing in the absence of
     [Kelce] and requested a bench warrant from the Court of Common
     Pleas when the specific, mandatory Rules of Criminal Procedure
     instruct the District Judge to proceed in the manner, which was
     shown by the docket and the bench warrant request, and the
     decision to proceed without notice is beyond the control of the
     Commonwealth and the reliance of the Magisterial District Judge


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     to proceed in the specific, mandatory language of the Rules of
     Criminal Procedure constituted due diligence.

Commonwealth’s Brief at 8.

     In evaluating a Rule 600 issue,

     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.

           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. . . .

           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. Horne, 89 A.3d 277, 283–284 (Pa. Super. 2014)

(quoting Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007)

(en banc)). “Due diligence is a fact-specific concept that must be determined

on a case-by-case basis,” Commonwealth v. Hunt, 858 A.2d 1234, 1241–


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1242 (Pa. Super. 2004) (quotation omitted), and the Commonwealth bears

the burden of proving, by a preponderance of evidence, that it acted with the

requisite diligence throughout the proceedings. Commonwealth v. Kearse,

890 A.2d 388, 393 (Pa. Super. 2005).

      In pertinent part, Rule 600 mandates 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.”          Pa.R.Crim.P. 600

(A)(2)(a). Rule 600 further instructs:

            For purposes of paragraph (A), 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).

      This Court has outlined the requirements for the calculation of the

relevant Rule 600 period:

      The first step in determining whether a technical violation of Rule
      600 has occurred is to calculate the “mechanical run date.”
      [Commonwealth v. Aaron, 804 A.2d 39, 42 (Pa. Super. 2002)].
      The mechanical run date is the date by which the trial must
      commence under Rule 600. Id. It is calculated by ascertaining
      the number of days in which the Commonwealth must commence
      trial under Rule 600 and counting from the date on which the
      criminal complaint was filed. Id.

Commonwealth v. Murray, 879 A.2d 309, 313 (Pa. Super. 2005).

      In the present case, there is no dispute the mechanical run date for

Kelce’s trial expired in 2008. The question on appeal is whether the ensuing



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eleven years, between the time Kelce failed to appear at the preliminary

hearing in November of 2007 and when he presented himself to the court in

Lycoming County in 2018, is excludable time attributed solely to Kelce or

whether the Commonwealth had the burden to demonstrate it exercised due

diligence in bringing him to trial.

      When conducting a Rule 600 calculation, the general rule is that delay

caused by a defendant’s willful failure to appear at a court proceeding of which

he has notice is excludable. Commonwealth v. Barbour, 189 A.3d 944, 956

(Pa. 2018). Conversely, if a defendant’s failure to appear is reasoned by lack

of proper notice, the Commonwealth must prove that it acted with due

diligence in bringing that defendant to trial. Commonwealth v. Evans, 473

A.2d 606, 608 (Pa. Super. 1984) (“If the Commonwealth fails to prove proper

notice, it must establish that it was unable to locate the defendant despite the

exercise of due diligence.”). Thus, the first pertinent inquiry is whether Kelce’s

absence from the preliminary hearing was deliberate, or more pointedly, did

the Commonwealth prove that Kelce had notice of the hearing.

      Pa.R.Crim.P. 511 outlines the procedure for proper service of a

summons and delineates what constitutes proof of service:

            (A) The summons shall be served upon the defendant by
      both first class mail and certified mail, return receipt requested. A
      copy of the complaint shall be served with the summons.

            (B) Proof of service of the summons by mail shall include:

            (1) a return receipt signed by the defendant; or



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            (2) the returned summons showing that the certified mail
      was not signed by the defendant and a notation on the transcript
      that the first class mailing of the summons was not returned to
      the issuing authority within 20 days after the mailing.

Pa.R.Crim.P. 511(A)(B)(1)(2).

      With regard to the adequacy of the notice provided to Kelce in the case

sub judice, the trial court concluded the following:

      In this case, the Commonwealth was required to show either that
      proper notice of the preliminary hearing was sent to [Kelce] or
      that it exercised due diligence in serving the bench warrant or
      attempting to locate [Kelce]. It did neither.

              [Kelce] credibly testified that he did not receive any mail
      regarding these charges and he was not aware of the charges, the
      preliminary hearing date or the bench warrant until May of 2018.
      While the evidence presented at the hearing clearly established
      that at the time the complaint was filed and the summons was
      issued, [Kelce’s] address was 25 Sweetbriar Drive, Newport News,
      VA 23606, the Commonwealth did not present sufficient evidence
      to show that the summons was actually sent by certified mail and
      first class mail to that address.

                                   * * *

            The Commonwealth wanted the court to find that the
      summons was properly served based on Rule 511.                The
      Commonwealth, however, failed to present evidence to show
      proof of service in accordance with Rule 511(B).              The
      Commonwealth failed to present either the return receipt signed
      by [Kelce] or the returned summons showing that the certified
      mail was refused or unclaimed. The return receipt or the returned
      summons would have shown the address to which the summons
      was sent. There was nothing in the record to show that the
      Commonwealth attempted to obtain the summons or the return
      receipt from the MDJ office or any archives but was unable to do
      so due to the passage of nearly eleven years since the summons
      was issued.    The Commonwealth also did not present any
      testimony from former MDJ Schriner, the current MDJ or any of
      their staff. Instead, the Commonwealth wanted the court to
      assume that the summons was properly addressed and mailed to

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      [Kelce] and the first class mail was not returned based solely on
      the address listed in box 6 and the dates recorded in boxes 20 and
      22 of the MDJ transcript. The Commonwealth also wanted the
      court to interpret box 22, which states “Summons Returned
      10/09/07” to mean that the summons was not returned to the
      MDJ but that it was served. Unlike the current MDJ transcripts,
      however, there are no clear notations to indicate whether the
      certified mail was accepted, refused or unclaimed or whether the
      first class mail was returned. Furthermore, merely because the
      correct address is listed on the MDJ transcript does not mean that
      the envelope used to mail the paperwork was addressed correctly.

            Based upon [Kelce’s] credible testimony that he never
      received the summons and the dearth of evidence presented by
      the Commonwealth to show that the summons was properly
      served, the court concluded that the Commonwealth failed to
      meet its burden to show proper notice.

Trial Court Opinion, 12/13/18, at 4–6.

      The Commonwealth does not appear to dispute that proof of notice was

technically deficient under Rule 511. Nor would a challenge to the trial court’s

conclusion that Kelce was not properly served succeed. Rule 511 requires that

proof of service by mail shall include either “a return receipt signed by the

defendant; or the returned summons showing that the certified mail was not

signed by the defendant and a notation on the transcript that the first class

mailing of the summons was not returned to the issuing authority within 20

days after the mailing.” Pa.R.Crim.P. 511(B)(1)(2). In this case, the trial

court conducted a hearing, took evidence, and heard argument. The court

then decided that the Commonwealth’s evidence, basically, a checked box on

the magisterial docket, did not meet the requirements of Rule 511 and that

Kelce testified credibly that he did not receive notice of the preliminary

hearing. The trial court’s analysis was supported by the record and grounded


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in the law. There is no reason to conclude that the court’s ruling was based

on bias, ill will,    partiality, prejudice, manifest unreasonableness, or

misapplication of the law. See Ramos, 936 A.2d at 1100 (trial court abuses

its discretion when 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 record evidence.).

      Having decided that the trial court’s ruling on lack of service was not an

abuse of discretion, it follows that Kelce’s failure to appear at the hearing was

not deliberate.   Accordingly, the time between the preliminary hearing in

November of 2007 and when Kelce appeared in court in Lycoming County in

2018, is not excludable time attributed to Kelce. Under these circumstances,

the Commonwealth had the burden to demonstrate it exercised due diligence

in bringing Kelce to trial. Evans, 473 A.2d at 608.

      The trial court summarized the Commonwealth’s effort to locate Kelce

as follows:
             The Commonwealth . . . presented no evidence whatsoever
      as to any efforts that it made in trying to apprehend [Kelce]. In
      fact, the record is devoid of any attempts whatsoever made by
      anyone to locate [Kelce], to apprehend him or to execute the
      bench warrant on [Kelce]. Moreover, there was no evidence
      whatsoever that [Kelce] attempted to evade the police or that
      [Kelce] was instrumental in causing the delay.

Trial Court Opinion, 12/13/18, at 7 (footnote omitted).

      The Commonwealth disagrees that it was required to exercise due

diligence in locating Kelce after the bench warrant was issued. Rather, the

Commonwealth defends its activity, or lack thereof, by its assertion that it


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“relied upon the actions of the Magisterial District Judge, which indicated that

[Kelce] was served with the summons and failed to appear at the [November

5, 2017] preliminary hearing, and therefore the delay was beyond the control

of the Commonwealth.”       Commonwealth’s Brief at 14.      In support of this

claim, the Commonwealth cites Commonwealth v. Bradford, 46 A.3d 693

(Pa. 2012), for the proposition that the Commonwealth is excused from its

due diligence obligation when it relies upon “the minor judiciary following the

specific, mandatory Rules of Criminal Procedure . . . .” Id. at 705.

      In Bradford, the Pennsylvania Supreme Court reversed the decision of

the trial court, affirmed by this Court, to dismiss charges against a defendant

pursuant to Rule 600. Therein, the charges against the defendant were held

for trial following a preliminary hearing, at which the Commonwealth was

present.   The magisterial district judge, however, failed to forward the

preliminary hearing transcript to the Allegheny County Department of Court

Records within five days of the hearing as required by Pa.R.Crim.P. 547(B).

Because the Department never received the transcript, the case was not

entered into the docketing system, and therefore, the docketing system did

not generate a “CR number,” an event which operated as a trigger for the

district attorney’s tracking system for Rule 600 run dates. After the defendant

was not brought to trial within 365 days, he filed a Rule 600 motion to dismiss

the charges. Bradford, 46 A.3d at 695–696.

      Our Supreme Court concluded that the district attorney had exercised

due diligence, reasoning:

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      the District Attorney herein had a system of monitoring cases.
      The system was triggered by electronic communication from the
      Office of Court Records, which, in turn, was initiated by the receipt
      of the transcript from the Magisterial District Judge. We do not
      find it unreasonable for the District Attorney to have relied upon
      the Magisterial District Judge’s compliance with the Rules of
      Criminal Procedure to trigger its internal tracking system. While
      we might question the Commonwealth’s diligence if it devised its
      system to be launched upon a district judge’s adherence to a self-
      designed custom or practice, we conclude that here the District
      Attorney’s office exercised due diligence, when it relied upon the
      minor judiciary following the specific, mandatory Rules of Criminal
      Procedure, which placed upon the District Judge the obligation to
      transmit timely papers to the common pleas court.

Bradford, 46 A.3d at 704–705 (footnote omitted).

      The Commonwealth maintains that the magisterial district judge

complied with the specific, mandatory rules when it determined that Kelce had

notice of the preliminary hearing and failed to appear. The Commonwealth

further asserts that the minor judiciary was thus authorized to conduct the

preliminary hearing in Kelce’s absence, hold the charges for court, and request

a bench warrant for his arrest. The Commonwealth thus proclaims that it was

entitled to rely on the magisterial district judge’s representation that Kelce

was served with the summons under the rules. The Commonwealth insists

that this reliance is “critical” because if Kelce willfully did not appear at the

preliminary hearing, then the over-ten-year between the preliminary hearing

to when Kelce responded to the bench warrant would be excludable and the

Commonwealth       would    not   have    to   demonstrate      due    diligence.

Commonwealth’s Brief at 24.




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       The record supports the Commonwealth’s claim that the magisterial

district judge conducted the preliminary hearing in accordance with the

procedural rules and, consistent with its determination, albeit incorrect, that

Kelce received notice and failed to appear.1 However, the Commonwealth’s

position that the magisterial district judge’s compliance with the rules of

criminal procedure in conducting the preliminary hearing negated its

responsibility to act with due diligence is seriously flawed.       While the

Commonwealth was justified in relying on the magisterial district court’s
____________________________________________



1  Under Pa.R.Crim.P. 512 “[t]he defendant shall appear before the issuing
authority for a preliminary hearing on the date, and at the time and place
specified in the summons. If the defendant fails to appear, the issuing
authority shall proceed as provided in Rule 543(D).” Pa.R.Crim.P. 543(D)(1)
provides that if the issuing authority determines that the defendant did not
receive proper notice of the hearing, an arrest warrant will be issued. If,
however, the issuing authority finds that the defendant’s absence was without
cause and after notice, the absence is deemed a waiver of defendant’s right to
appear at any further proceedings before the issuing authority. Pa.R.Crim.P.
543(D)(3). If the issuing authority conducts a preliminary hearing in the
defendant’s absence and holds the matter for court, “the issuing authority shall
give the defendant notice by first class mail of the results of the preliminary
hearing and that a bench warrant has been requested and . . . transmit the
transcript to the clerk of courts with a request that a bench warrant be issued
by the court of common pleas. . . .” Pa.R.Crim.P. 543 (D)(3)(b)(i)–(ii).

      The scant record evidence reveals that after Kelce failed to appear at
the preliminary hearing, the magisterial district judge informed the court of
common pleas that: “In [Kelce’s] absence, the . . . case was held for court
pursuant to Pa.R.Crim.P. 543(D), and it is requested that the court issue a
bench warrant for [Kelce].” Request for Issuance of Bench Warrant, filed
11/5/07. On November 13, 2007, the court of common pleas issued the bench
warrant based on Kelce’s failure to appear at the preliminary hearing. N.T.
Rule 600 Hearing, 7/20/18, Commonwealth Exhibit 2.




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authority to conduct the hearing in Kelce’s absence and hold the charges for

court, once the bench warrant for Kelce’s arrest was issued on November 13,

2007, the burden to act diligently to locate Kelce clearly reverted to the

Commonwealth.2          Unlike the situation in Bradford, where the minor

judiciary’s failure to transmit the record was the direct cause of the delay in

bringing the defendant to trial, the magisterial district judge’s actions here

had no effect on the delay.            In other words, once the matter before the

magisterial district judge was referred to the court of common pleas, the minor

judiciary’s obligation in the matter was terminated and the responsibility to

bring    Kelce   to   trial   rested    squarely    on   the    Commonwealth.   The

Commonwealth’s response was to do nothing.                     See Commonwealth v.

Carter, 204 A.3d 945, 949 (Pa. Super. 2019) (upholding Rule 600 dismissal

when circumstances of delay were within the control of the Commonwealth).

        Based upon the above, we conclude that the Commonwealth did not

meet its burden to exercise due diligence to bring Kelce to trial in the

timeframe according to the mandates and jurisprudence of Rule 600. See

Kearse, 890 A.2d at 392 (Commonwealth must prove due diligence by a

preponderance of the evidence). The Commonwealth did not provide evidence

of even a modicum of effort to comply with the Rule. Accordingly, viewing the




____________________________________________


2 We note that the record shows that the District Attorney’s Office received a
copy of said bench warrant on November 15, 2007. N.T. Rule 600 Hearing,
7/20/18, Exhibit 2.

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facts favorably to Kelce, we find that the trial court did not abuse its discretion

in granting Kelce’s motion to dismiss under Rule 600.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2019




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