J-S62018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

    JOHN RICHARD KLUNK, JR.

                             Appellant                No. 498 MDA 2017


       Appeal from the Judgment of Sentence Entered February 21, 2017
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0008414-2015


BEFORE: STABILE, J., PLATT, J.*, and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                         FILED JANUARY 17, 2018

        Appellant John Richard Klunk, Jr., appeals from the February 21, 2017

judgment of sentence entered in the Court of Common Pleas of York County

(“trial court”), following his bench trial based upon stipulated facts resulting

in his conviction for possession of a controlled substance, possession of

marijuana, and possession of drug paraphernalia.1 Upon review, we affirm.

        Following a motor vehicle stop, Officer Scott A. Musselman, West York

Police Department, charged Appellant via a criminal complaint with the

aforementioned crimes on July 6, 2015. On July 7, 2015, a magisterial district

judge (“MDJ”) issued a summons, directing Appellant to appear for a

preliminary hearing on August 19, 2015. The summons was sent to Appellant
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   35 P.S. § 780-113(a)(16), (31), and (32), respectively.
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via both first-class and certified mail. Although the summons sent via the

first-class mail was accepted on July 28, 2015, the one sent via certified mail

was returned as unclaimed on August 3, 2015. Consequently, a warrant was

issued for Appellant’s arrest on August 11, 2015 due to the return of the

certified mail. On the same day, the preliminary hearing scheduled for August

19, 2015 was cancelled. On September 16, 2015, the arrest warrant was

returned as unserved. As a result, on the same day, Officer Musselman filed

a “fugitive declaration request,” claiming the Commonwealth was unable to

locate Appellant despite verifying his name on NCIC/CLEAN.             Appellant

eventually was apprehended on November 13, 2015. A preliminary hearing

was scheduled for November 25, 2015. On November 16, 2015, the MDJ sua

sponte rescheduled the November 25, 2015, preliminary hearing for

December 23, 2015.

       On April 20, 2016, the parties appeared before the trial court for a pre-

trial conference, at which Appellant requested a continuance and asked that

his case be listed for the July 2016 term. The July 2016 term was scheduled

to begin on July 11 and end on July 29. On June 1, 2016, the trial court issued

an order listing the case for the July 2016 term and assessing the delay from

April 20, 2016 through July 29, 2016 (the end of the July term) against

Appellant.2 Appellant, however, was not tried in July 2016. The case was

called for trial on November 17, 2016.           Because Appellant’s counsel was
____________________________________________


2 Appellant did not object to the trial court’s assessment of delay against him
that included the end of the July 2016 trial term.

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unavailable on that date, the trial court ordered the case to be continued until

the January 2017 term. In so doing, the trial court assessed against Appellant

the delay from November 17, 2016 until the beginning of the January 2017

term.

        On January 18, 2017, Appellant filed a Pa.R.Crim.P. 600 motion, seeking

to dismiss with prejudice the charges filed against him. Appellant argued that

the Commonwealth failed to bring him to trial within 365 days of the filing of

the criminal complaint.    On January 19, 2017, the trial court conducted a

hearing on the Rule 600 motion, at which the Commonwealth presented the

testimony of Officer Musselman, who testified in part, that summons was sent

to Appellant, but returned “unanswered.” N.T. Hearing, 1/19/17, at 6. Officer

Musselman further testified that an arrest warrant was issued against

Appellant because the summons was unanswered. Id. at 7. He testified that,

following the issuance of the arrest warrant, he “confirmed that that was his

listed address in NCIC and also other databases, like PennDot.” Id. Officer

Musselman stated that he was unaware of any additional addresses for

Appellant. Id. When asked whether he engaged in any other efforts “beyond

ensuring that the warrant was listed in NCIC and confirming that the address

was correct in NCIC and PennDot,” Officer Musselman replied “no.” Id. On

cross-examination, Officer Musselman remarked that he used the address

listed on Appellant’s driver’s license after Appellant had confirmed its

accuracy.    Id. at 8.   Officer Musselman acknowledged that neither he nor




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anyone else in his department, to the best of his knowledge, personally went

out to the address. Id.

      Following the hearing, on February 3, 2017, the trial court denied

Appellant’s Rule 600 motion. The trial court found that five periods of delay

occurred in this case. (1) the time between the July 6, 2015, filing of the

criminal complaint and Appellant’s arrest on November 13, 2015; (2) the time

between the cancelled November 25, 2015 and rescheduled December 23,

2015, preliminary hearing; (3) the time between the April 20, 2016 pre-trial

conference and July 29, 2016, the end of the July trial term; (4) the time

between the November 17, 2016 postponement of trial and the start of the

rescheduled trial on January 18, 2017; and (5) the time between January 18,

2017 filing of Rule 600 motion and the date on which Appellant’s trial would

commence.

      On February 21, 2017, the case eventually proceeded to a stipulated

bench trial, following which the trial court found Appellant guilty of possession

of a controlled substance, possession of marijuana, and possession of drug

paraphernalia. On the same date, the trial court sentenced Appellant to 12

months’ probation for possession of a controlled substance, 30 days’ probation

for possession of marijuana and 12 months’ probation for possession of drug

paraphernalia. The trial court ordered the sentences to run concurrently to

one another. Appellant timely appealed to this Court.

      Following Appellant’s filing of a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal, the trial court issued a Pa.R.A.P. 1925(a) opinion,

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adopting largely its February 3, 2017, opinion denying Appellant’s Rule 600

motion.

      On appeal, Appellant raises a single issue for our review:

      I.    Whether the trial court erred in denying [Appellant’s] motion
            to dismiss for violation of Rule 600 because the
            Commonwealth failed to show it exercised due diligence in
            locating [Appellant] over a 130-day period where its only
            effort to do so was to enter his name into computer
            databases and no legwork was performed.

Appellant’s Brief at 4 (unnecessary capitalization omitted).

      Our standard of review for Rule 600 claims is an abuse of discretion.

Commonwealth v. Thompson, 93 A.3d 478, 486 (Pa. Super. 2014), appeal

denied, 159 A.3d 941 (Pa. 2016). It is well-settled:

      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

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     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. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011)

(citations omitted) (en banc) (emphasis added), aff’d, 44 A.3d 655 (Pa.

2012).

     Rule 600 provides in relevant parts:

     (A) Commencement of Trial; Time for Trial

          (1) For the purpose of this rule, trial shall be deemed to
          commence on the date the trial judge calls the case to trial,
          or the defendant tenders a plea of guilty or nolo contendere.

          (2) Trial shall commence within the following time periods.

             (a) Trial 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.

         ....

     (C) Computation of Time

          (1) 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.

         ....

          (3)(a) When a judge or issuing authority grants or denies a
          continuance:

          (i) the issuing authority shall record the identity of the party
          requesting the continuance and the reasons for granting or
          denying the continuance; and

          (ii) the judge shall record the identity of the party requesting
          the continuance and the reasons for granting or denying the
          continuance. The judge also shall record to which party the
          period of delay caused by the continuance shall be
          attributed, and whether the time will be included in or
          excluded from the computation of the time within which trial
          must commence in accordance with this rule.

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Pa.R.Crim.P. 600.3 “[T]o obtain relief, a defendant must have a valid Rule

600 claim at the time he files his motion to dismiss the charges.”

Commonwealth v. Hyland, 875 A.2d 1175, 1189 (Pa. Super. 2005), appeal

denied, 890 A.2d 1057 (Pa. 2005). The first step in conducting a Rule 600

analysis is to calculate the “mechanical run date.” Commonwealth v. Lynn,

815 A.2d 1053, 1056 (Pa. Super. 2003). “The mechanical run date is the date

by which the trial must commence under Rule 600. It is calculated by adding

365 days . . . to the date on which the criminal complaint is filed.” Id. (citation

omitted). “If the Commonwealth attempts to bring a defendant to trial beyond

the 365-day-period prescribed by Rule 60, and the defendant filed a Rule 600

motion to dismiss, the court must assess whether there is excludable time

and/or excusable delay.” Commonwealth v. Hunt, 858 A.2d 1234, 1241

(Pa. Super. 2004) (en banc), appeal denied, 875 A.2d 1073 (Pa. 2005). The

trial court must exclude from the time for commencement of trial any period

during which the defendant was unavailable, including any continuances

requested by the defendant.            See Pa.R.Crim.P. 600(C); Rule 600, cmt.

“Excludable time” is defined in Rule 600(C) as the period of time between the

filing of the written complaint and the defendant’s arrest, provided that the

defendant could not be apprehended because his whereabouts were unknown

and could not be determined by due diligence. Hunt, 858 A.2d at 1241. The

amount of excludable time is added to the mechanical run date to arrive at an
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3 Effective July 1, 2013, our Supreme Court adopted a new Rule 600, which
reflected prevailing case law. See Pa.R.Crim.P. 600, cmt.

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adjusted run date. See Commonwealth v. Ramos, 936 A.2d 1097, 1103

(Pa. 2007).

     As noted, “Rule 600 requires the Commonwealth to try a defendant

within 365 days of the filing of the complaint.” Commonwealth v. Roles,

116 A.3d 122, 124 (Pa. Super. 2015), appeal denied, 128 A.3d 220 (Pa.

2015).

     For purposes of determining the time within which trial must be
     commenced pursuant to paragraph (A), paragraph (C)(1) makes
     it clear that any delay in the commencement of trial that is not
     attributable to the Commonwealth when the Commonwealth has
     exercised due diligence must be excluded from the computation
     of time. Thus, the inquiry for a judge in determining whether
     there is a violation of the time periods in paragraph (A) is whether
     the delay is caused solely by the Commonwealth when the
     Commonwealth has failed to exercise due diligence. If the delay
     occurred as the result of circumstances beyond the
     Commonwealth’s control and despite its due diligence, the time is
     excluded.     In determining whether the Commonwealth has
     exercised due diligence, the courts have explained that 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.

     Delay in the time for trial that is attributable to the judiciary may
     be excluded from the computation of time. However, when the
     delay attributable to the court is so egregious that a constitutional
     right has been impaired, the court cannot be excused for
     postponing the defendant’s trial and the delay will not be
     excluded.

Pa.R.Crim.P. 600, cmt. (citations, quotation marks and brackets omitted).

“The Commonwealth has the burden of establishing by a preponderance of

the evidence that it exercised due diligence throughout the prosecution.”

Roles, 116 A.3d at 125.

     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. We have held that, where the Commonwealth exercises due

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      diligence in attempting to locate a defendant prior to arrest, the
      period of elapsed time between the date of the filing of the
      complaint and the date of the arrest is excludable[.]

Commonwealth v. Newman, 555 A.2d 151, 155 (Pa. Super. 1989), appeal

denied, 655 A.2d 512 (Pa. 1995). “Due diligence is a fact-specific concept

that must be determined on a case-by-case basis.” Hunt, 858 A.2d at 1241

(citation omitted). It does not require perfect vigilance and punctilious care,

but rather a showing by the Commonwealth that a reasonable effort has been

put forth. Id.

      Instantly, Appellant argues only that the Commonwealth failed to bring

him to trial within 365 days from the filing of the criminal complaint. Before

we address the merits of his claim, we point out several undisputed facts.

First, the parties agree that the criminal complaint was filed on July 6, 2015,

and that the mechanical run date for purposes of Rule 600 was 365 days after

the filing of the complaint, i.e., July 5, 2016. Second, the parties agree that

Appellant’s trial commenced on February 21, 2017, 231 days beyond the

mechanical run date. Third, the parties do not dispute the exclusion of 28

days as it was occasioned by the MDJ’s sua sponte cancelling of the November

25, 2015 preliminary hearing and rescheduling it for December 23, 2015.

Fourth, the parties do not dispute that the trial court granted Appellant’s April

20, 2016 continuance request and assessed the delay against him through the

end of the July 2016 trial term, i.e., July 29, 2016. Thus, the parties do not

contest the exclusion of 100 days. Fifth, the parties do not dispute that the

November 17, 2016 trial was rescheduled for the January 2017 trial term


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because of Appellant’s counsel’s unavailability. As a result, the parties do not

challenge the exclusion of 62 days—from November 17, 2016 until January

18, 2017, the start date for his rescheduled trial and the date on which he

filed his Rule 600 motion. Finally, the parties do not dispute the exclusion of

the 17-day delay between the filing of the January 18, 2017 Rule 600 motion

and the February 3, 2017, denial of the same.4 When we add together the

undisputed period of excludable delay, we arrive at 207 days.         Thus, the

mechanical run date here is exceeded by only 24 days.

       To determine whether a Rule 600 violation occurred, however, we need

only determine whether the 130-day period between the filing of the July 6,

2015 criminal complaint and Appellant’s November 13, 2015 arrest is

excludable.     Appellant argues that the 130-day delay is not excludable

because the Commonwealth failed to exercise due diligence in locating him.

In support, Appellant claims that the Commonwealth exerted only minimal

effort in locating him by confirming his address in the NCIC database.

Appellant thus claims that the Commonwealth, at a minimum, should have

verified the accuracy of his address by visiting the location associated with the

address. Appellant, however, fails to cite any case law or authority for this

proposition. The Commonwealth responds that it acted with due diligence in

that it made reasonable efforts to locate Appellant.
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4 Generally, the time stops on the day a defendant files a Rule 600 motion
alleging violations of his right to a speedy trial. Any periods of delay that
occurred after the filing of the Rule 600 motion are not taken into account in
disposing of the motion. See Hyland, supra.

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      Summarizing the evidence adduced at the Rule 600 hearing, the trial

court found that Appellant’s

      whereabouts were unknown at the time of the arrest warrant was
      issued. The address that [Appellant] supplied at the time of his
      arrest was verified through PennDOT records and NCIC to be the
      last known valid address of [Appellant]. An arrest warrant was
      issued by the magisterial district judge on August 11, 2015.
      Officer Musselman entered [Appellant’s] warrant into the NCIC
      system.

       ....

      Office Musselman testified that the summons was returned
      unanswered from [Appellant’s] last known address. Officer
      Musselman checked PennDOT records and NCIC, which both
      indicated the address provided by [Appellant] remained valid.

Trial Court Opinion, 2/3/17, at 3, 5 (emphasis added). Accordingly, the trial

court concluded that the Commonwealth’s actions were reasonable under the

circumstances and that the Commonwealth acted with due diligence in serving

the arrest warrant upon Appellant.      Given our standard of review and the

circumstances of this case, we are constrained to agree. As explained above,

we are required to construe Rule 600 in a manner consistent with society’s

right to punish and deter crime “[s]o 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.”     Peterson, supra.   Appellant, not the

Commonwealth, has committed the misconduct in this case. As noted earlier,

Appellant here confirmed to Officer Musselman the address listed on his

driver’s license, and Officer Musselman verified the same on the NCIC and

PennDOT databases. In providing Officer Musselman with an address at which

he could not be located, Appellant rendered himself unavailable in this case.


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Accordingly, the trial court did not abuse its discretion in denying Appellant’s

Rule 600 motion.

      Judgement of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 01/17/2018




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