J-S36028-19

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

WALLACE FLOYD KELCE, JR.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 
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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 selfdesigned 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 

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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 

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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