Com. v. White, K. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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