J-S41032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF                        :    IN THE SUPERIOR COURT
  PENNSYLVANIA,                          :       OF PENNSYLVANIA
                                         :
                         Appellee        :
                                         :
                    v.                   :
                                         :
  LAVAESHA CHANTE MESSER,                :
                                         :
                         Appellant       :    No. 1965 MDA 2018


    Appeal from the Judgment of Sentence Entered November 14, 2018
             in the Court of Common Pleas of Dauphin County
           Criminal Division at No(s): CP-22-CR-0003534-2017

BEFORE:      LAZARUS, J., MURRAY, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:               FILED SEPTEMBER 11, 2019

       Lavaesha Chante Messer (Appellant) appeals from her judgment of

sentence imposed on November 14, 2018, after a jury found her guilty of

aggravated assault. Specifically, Appellant challenges the denial of her pre-

trial motion to dismiss this case pursuant to Pa.R.Crim.P. 600. Upon review,

we affirm.

       We provide the following background. Early in the morning of July 16,

2016, Officer Gregory Hill of the Harrisburg Bureau of Police was called to

2339 Logan Street to investigate a disturbance. The victim, Terrance Reese,

claimed he had an altercation with Appellant, wherein Appellant stabbed Reese

with a knife. N.T., 6/12/2018, at 9. That morning, Officer Hill prepared and




* Retired Senior Judge assigned to the Superior Court.
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filed a criminal complaint charging Appellant with aggravated assault and

terroristic threats.1 He also obtained a warrant for her arrest.

          Appellant was eventually arrested during a warrant sweep on June 2,

2017. After a series of continuances, trial was scheduled for May 21, 2018.

On May 18, 2018, Appellant filed a motion to dismiss pursuant to Pa.R.Crim.P.

600. It was her position that the 321 days between the filing of the criminal

complaint and Appellant’s arrest was “attributable to the Commonwealth

because law enforcement failed to exercise due diligence in serving the arrest

warrant on” Appellant.        Motion to Dismiss, 5/18/2018, at ¶ 11(A).       Thus,

Appellant requested that the trial court dismiss her case.

          On June 12, 2018, the trial court held a hearing on Appellant’s motion.

At that hearing, the Commonwealth called Officer Hill and Officer Cynthia

Kreiser to testify.       The evening following the incident, Officer Kreiser

attempted to serve the arrest warrant on Appellant at 644 Woodbine Street.

N.T., 6/12/2018, at 5. Officer Kreiser learned that Appellant did not live at

that address. Id.

          Officer Hill testified that it was his belief that Appellant lived at 2344

Logan Street with other family members. Id. at 10. Thus, two days after the

incident, Officer Hill attempted to serve the warrant at the Logan Street

address, but Appellant was not there. Id. at 11. Officer Hill once again

attempted service at the Logan Street address on February 12, 2017. Id. at

____________________________________________
1   The criminal complaint listed Appellant’s address as 644 Woodbine Street.

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13. On that day, he learned nobody was living at the residence. Id. at 14.

Officer Hill testified that he also looked through the PennDOT database for an

address once. Id. at 18.

         Appellant also testified at the hearing. She testified that at the time

the arrest warrant was issued, she was on probation from Dauphin County for

a retail theft conviction from Cumberland County.2 However, according to the

Commonwealth, the Cumberland County incident was not included on her

criminal record history. Id. at 27. In addition, Appellant acknowledged having

been evicted from the Logan Street residence in December 2016, and she

changed addresses thereafter. Id. at 25.

         On June 27, 2018, the trial court denied Appellant’s motion. A jury

trial was held on September 27 and 28, 2018, and Appellant was found guilty

of aggravated assault and not guilty of terroristic threats. On November 14,

2018, Appellant was sentenced to 6 to 23 months of incarceration.3 Appellant

timely filed a notice of appeal on December 4, 2018, and both Appellant and

the trial court complied with Pa.R.A.P. 1925.

         On appeal, Appellant challenges the denial of her Rule 600 motion.

We review this issue mindful of the following.


____________________________________________
2 She testified that the supervision originated in Cumberland County, but “they
transferred” her supervision to Dauphin County. Id. at 24.

3 Neither the trial nor sentencing transcripts are included in the certified
record. However, due to the nature of the issue on appeal, this does not
impede our review.

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           In evaluating Rule [600] issues, 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. 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. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en

banc).

     The case at issue here was initiated on July 16, 2016; thus, Rule 600

required that trial commence within 365 days, or before July 17, 2017.

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Appellant’s trial was scheduled for May 21, 2018.      The Rule provides that

“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). Here, the parties agree that the only

period of time at issue is the 321-day period between the filing of the criminal

complaint and Appellant’s arrest. N.T., 6/12/2018, at 3; Appellant’s Brief at

11. The Rule provides that

      [w]hen the defendant or the defense has been instrumental in
      causing the delay, the period of delay will be excluded from
      computation of time. [] For purposes of paragraph (C)(1) … the
      following period[] of time, … [is an example of a period] of delay
      caused by the defendant. This time must be excluded from the
      computations in paragraph[] (C)(1)[]:

            (1) 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 or her
            whereabouts were unknown and could not be determined by
            due diligence[.]

Pa.R.Crim.P. 600 (Comment).

      “The Commonwealth … has the burden of demonstrating by a

preponderance of the evidence that it exercised due diligence. As has been oft

stated, [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.




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Bradford, 46 A.3d 693, 701-02 (Pa. 2012) (citations and quotation marks

omitted).

      Here, the trial court concluded that “the Commonwealth exercised due

diligence in locating Appellant.” Trial Court Opinion, 2/15/2019, at 3.

Specifically, the trial court pointed out that officers made “at least three

attempts at two different addresses.” Id. In addition, Officer Hill “checked

the PennDOT database at least once.” Id. at 4.         Moreover, the trial court

found the fact that Appellant was on probation as unavailing because that

conviction did not show up on her criminal record. Id. Finally, the trial court

pointed out that Appellant moved after December 2016. Id. Based on the

foregoing, the trial court concluded that “the efforts of police were reasonable

under the circumstances” and therefore the denial of Appellant’s motion was

proper. Id.

      On appeal, Appellant contends the efforts of police were not reasonable

under these circumstances.        Appellant’s Brief at 12.      Specifically, she

emphasizes the fact that police took no action whatsoever between July 19,

2016 and February 11, 2017. Id. Moreover, Appellant points out that Officer

Kreiser’s attempt to serve Appellant at an address where there was no

testimony about how knowledge of that address arose should not have been

considered by the trial court as a reasonable effort. Id. at 13. Accordingly, it

is Appellant’s position that the police’s paltry efforts failed to satisfy the due

diligence standard.


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            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.

             In considering “the information available to the police,” we
      do not ask whether the police had available all the information
      they might have had available—in other words, whether they did
      all they could have done. Instead, we ask whether what they did
      do was enough to constitute due diligence.

            “It is simply not required that the Commonwealth exhaust
      every conceivable method of locating a defendant. Rather,
      reasonable steps must be taken.” Commonwealth v. Jones, []
      389 A.2d 1167, 1170 ([Pa. Super.] 1978).

Commonwealth v. Laurie, 483 A.2d 890, 892 (Pa. Super. 1984) (some

citations omitted).

      Here, we discern no error of law or abuse of discretion in the trial court’s

concluding that the efforts of police to locate Appellant were reasonable under

the circumstances.    We recognize that police could have, and maybe even

should have, done more to locate Appellant. However, viewing the facts in

the light most favorable to the Commonwealth as the prevailing party, our

standard of review requires only that we consider whether the trial court

committed an error of law or an abuse of discretion in determining that the

efforts were reasonable under the circumstances. Here, police attempted to

serve the warrant twice shortly after the incident occurred, and then once

again several months later. By that point, there is no question that Appellant

was no longer living at the same address. In addition, Officer Hill checked the


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PennDOT database at least once.        Finally, the fact that Appellant was on

probation was not helpful in finding Appellant because it did not appear on her

certified criminal record.

      As we set forth in Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.

Super. 1991), “[w]e will not, by judicial hindsight, criticize the police activity

in this instance.”   Police attempted to find Appellant on three separate

occasions, and they succeeded in finding her on the fourth. In considering

“the dual purpose behind Rule [600],” we conclude that the trial court’s

decision should not be disturbed. Ramos, 936 A.2d at 1100.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/2019




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