Com. v. Jackson, J. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
Appellee
v.
JOSEPH JACKSON
Appellant No. 596 MDA 2018
Appeal from the Judgment of Sentence March 26, 2018
In the Court of Common Pleas of York County
Criminal Division at No: CP-67-CR-0004876-2016
BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.
MEMORANDUM BY STABILE, J.: FILED JANUARY 09, 2019
Appellant, Joseph Jackson, appeals from the judgment of sentence
imposed on March 26, 2018 in the Court of Common Pleas of York County.
Appellant contends the trial court erred in calculating excludable time under
Pa.R.Crim.P. 600(C)1 and, therefore, erred in denying his motion to dismiss
____________________________________________
1 Rule 600(A) requires that a defendant be brought to trial within 365 days
from the date on which the complaint is filed. Rule 600(C) provides, in
relevant part,
(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.
Pa.R.Crim.P. 600(A)(2)(a) and (C)(1).
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charges of possession with intent to deliver, 35 P.S. § 780-113. Upon review,
we affirm.
Appellant’s trial was scheduled for January 9, 2018. Prior to jury
selection, Appellant’s counsel filed a Rule 600 motion to dismiss. Testimony
was taken from the affiant, Officer Michelle Miller, a York Police Officer who
also works for the York County Drug Task Force. Officer Miller explained that
Appellant was arrested on January 6, 2016 but charges were not immediately
filed because Appellant initially agreed to cooperate with the Drug Task Force.
Notes of Testimony (“N.T.”), 1/9/18, at 10-11. Charges were filed on March
17, 2016 but Appellant was not located and apprehended until July 7, 2016.
Id. at 11-14. While other delays in bringing Appellant to trial were attributable
to Appellant and are not challenged on appeal, Appellant is challenging the
exclusion of the period from March 17, 2016 until July 7, 2016 (112 days). If
that 112-day period were included in the Rule 600 calculations, Appellant
would be entitled to have the charges dismissed.
After hearing Officer Miller’s testimony and argument of counsel, the
trial court determined the Commonwealth acted with due diligence in
attempting to locate Appellant and bring him to trial. Therefore, the court
denied Appellant’s motion to dismiss. The case proceeded to trial and the jury
returned a guilty verdict. On March 26, 2018, the trial court sentenced
Appellant to a term of three to six years in a state correctional institution,
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consecutive to a sentence imposed in a separate case. This timely appeal
followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents one issue for our consideration:
I. Whether the honorable court erred in denying Appellant’s
motion to dismiss pursuant to Rule 600 of the Pennsylvania
Rules of Criminal Procedure.
Appellant’s Brief at 4.
In Commonwealth v. Bradford, 46 A.3d 693 (Pa. 2012), our Supreme
Court explained:
When reviewing a trial court’s decision in a Rule 600 case, an
appellate court will reverse only if the trial court abused its
discretion. See Commonwealth v. Selenski, 606 Pa. 51, 994
A.2d 1083, 1087 (2010). “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
. . . discretion is abused.” Id. (internal citation omitted). Our
scope of review is limited to the record evidence from the Rule
600 hearing and the findings of the lower court, viewed in the light
most favorable to the prevailing party. See id.
Id. at 700. Further, “[d]ue 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.”
Commonwealth v. Sloan, 67 A.3d 1249, 1252 (Pa. Super. 2013) (quoting
Bradford, 46 A.3d at 701-02).
In its order denying Appellant’s motion to dismiss, the trial court made
the following observations:
We have taken th[e] testimony this afternoon from Officer Miller
who indicated [Appellant] was initially arrested on the date of the
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incident, January 6, 2016, that charges were not immediately filed
because [Appellant] was going to cooperate with the Drug Task
Force. When that did not occur, charges were filed on March 17,
2016.
A warrant for his arrest was filed on the same date. He was
entered into the NCIC database system and additionally [O]fficer
Miller indicated that she tried to contact [Appellant] via the cell
phone number that he had provided, that there were two to three
attempts to contact him via that cell phone number and that she
further went to his last known address on Madison Avenue to no
avail. She was not aware of any employment [Appellant] was
engaged in nor of any local relatives to contact him. She [] was
notified at the time [Appellant] was apprehended on July 7 th,
2016.
N.T., 1/9/18, at 24-25. In its Rule 1925(a) opinion, the trial court recounted
Officer Miller’s testimony as well as the trial court’s conclusion that the efforts
made by the police were reasonable under the circumstances, warranting
exclusion of the 112 days. Trial Court Rule 1925(a) Opinion, 6/14/18, at 6.
The court explained it “cannot make a finding that the Commonwealth failed
to exercise due diligence or make reasonable efforts to bring the case to trial
so as to justify the dismissal of charges.” Id.
Appellant argues that “the authorities did not exercise due diligence in
trying to locate the Appellant once the complaint was filed and the warrant
issued.” Appellant’s Brief at 10. In support of that contention, Appellant cites
the testimony elicited in the course of cross-examining Officer Miller.
Specifically, Appellant notes that Officer Miller “did not investigate places of
employment,” “did not search for relatives,” “did not question his landlord,”
“did not contact the [confidential informant] or anyone else who may have
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known of his whereabouts,” and “did not check any PennDOT records.” Id.
(quoting N.T., 1/9/18, at 14-17).
Countering Appellant’s argument, the Commonwealth cites
Commonwealth v. Hinton, 409 A.2d 54 (Pa. Super. 1979), in which this
Court determined:
[T]he test is not a venture into hindsight reasoning as to whether,
if certain individuals had been contacted, or other things done, an
arrest would probably have been made. The matter of availability
and due diligence must be judged by what was done by the
authorities rather than [by] what was not done. The standard of
due diligence demands only reasonable efforts.
Id. at 57-58 (emphasis in original). The Commonwealth contends Appellant
gives mere lip service to the due diligence standard, focusing on what Officer
Miller “did not do, rather than arguing that what she did do was in some way
insufficient.” Commonwealth’s Brief, at 10. As the Commonwealth
recognizes, Officer Miller obtained a warrant for Appellant’s arrest when the
charges were filed. She entered the warrant in the NCIC database so that
authorities would be notified of an outstanding warrant for Appellant’s arrest
in the event he were to have future police contact in Pennsylvania or
surrounding states. She authorized extradition. She attempted to locate
Appellant at his residence and attempted to reach him on two or three
occasions using his last known cell phone number. Commonwealth Brief at
10. See also N.T., 1/9/18, at 12-14. She did not contact an employer
because Appellant indicated he was not employed. She did not contact
relatives because she was not aware of any. Id. at 14.
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As our Supreme Court has explained:
It is not the function of our courts to second-guess the methods
used by police to locate accused persons. The analysis to be
employed is whether, considering the information available to the
police, they have acted with diligence in attempting to locate the
accused. Deference must be afforded the police officer’s
judgment as to which avenues of approach will be fruitful.
Commonwealth v. Mitchell, 372 A.2d 826, 832 (Pa. 1977). “[T]he 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), appeal denied, 606 A.2d 901 (Pa. 1992).
Here, after considering the efforts undertaken by Officer Miller, the trial
court concluded the court “cannot make a finding that the Commonwealth
failed to exercise due diligence or make reasonable efforts to bring the case
to trial so as to justify the dismissal of charges.” Trial Court Rule 1925(a)
Opinion, 6/14/18, at 6. Viewing the evidence of record from the Rule 600
hearing and the findings of the trial court in the light most favorable to the
Commonwealth as the prevailing party, we find no abuse of discretion in the
trial court’s ruling.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/9/2019
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