J-S61024-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KWAMAINE WHITE, 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 oneyear-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 postarrest 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.