J-S77007-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

STEPHEN WILSON

                            Appellant                  No. 2593 EDA 2013


       Appeal from the Judgment of Sentence Entered February 8, 2013
             In the Court of Common Pleas of Philadelphia County
      Criminal Division at No(s): CP-51-CR-0014270-2009 and CP-51-CR-
                                 0015266-2009


BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED MARCH 17, 2015

        Appellant, Stephen Wilson, appeals from the February 8, 2013

judgment of sentence imposing an aggregate eight to sixteen years of

incarceration followed by five years of probation for his sexual assaults of

two young men, one of whom was Appellant’s cousin and a minor at the

time of the offense.        On appeal, Appellant argues the trial court erred in

denying his motions to dismiss the consolidated prosecutions pursuant to

Pa.R.Crim.P. 600. After careful review, we affirm.

        Appellant’s sexual assault of his cousin, L.S., took place on December

5, 2008. Appellant got L.S. drunk in a hotel room and forced him to perform

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*
    Retired Senior Judge assigned to the Superior Court.
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fellatio on Appellant.     Appellant then had anal sex with L.S. without L.S.’s

consent.

       Appellant met the second victim, B.P., in an internet chat room, then

traveled to B.P.’s apartment on September 15, 2009 to meet him in person.

Appellant and B.P. remained together in B.P.’s apartment into the early

morning hours of September 16, 2009.              The two got into an argument,

during which Appellant drew a knife. Appellant used the knife to cut B.P. on

his face, abdomen, shoulders and back. Subsequently, Appellant had anal

sex with B.P. without B.P.’s consent. After the sex, Appellant choked B.P.

until he blacked out. B.P. regained consciousness to find Appellant having

anal sex with him for a second time.             Police apprehended Appellant on

September 16, 2009 in connection with his offenses against B.P.

       The prosecutions pertaining to Appellant’s offenses against these two

victims were consolidated for a June 15, 2012 bench trial. At the conclusion

of trial, the judge found Appellant guilty of aggravated assault, possession of

an instrument of crime, indecent assault by forcible compulsion, simple

assault, recklessly endangering another person and sexual assault against

B.P.1 The court also found Appellant guilty of unlawful contact with a minor,

sexual assault, endangering the welfare of children, corruption of minors,

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1
   18 Pa.C.S.A. §§ 2702, 907(a), 3126(a)(2), 2701(a), 2705, and 3124.1
respectively.




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and indecent assault by forcible compulsion against his cousin. 2            On

February 8, 2013, the trial court imposed sentence as set forth above. The

trial court also determined Appellant to be a sexually violent predator. This

timely appeal followed.

       Appellant argues the trial court erred in denying his Pa.R.Crim.P. 600

motions to dismiss for both prosecutions.3        We review the trial court’s

decision for abuse of discretion. Commonwealth v. Sloan, 67 A.3d 1249,

1251 (Pa. Super. 2013) (citing Commonwealth v. Hunt, 858 A.2d 1234,

1238 (Pa. Super. 2004) (en banc)). “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.”

Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). “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.” Id.

            We have explained that Rule 600 has the dual purpose of
       both protecting a defendant’s constitutional speedy trial rights
       and protecting society’s right to effective prosecution of criminal
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2
    18 Pa.C.S.A. §§ 6318(a)(1), 3124.1, 4304(a)(1), 6301(a)(1), and
3126(a)(2), respectively.
3
  A revised version of Rule 600 took effect on July 1, 2013. We will consider
the prior version, as that version was applicable when Appellant filed his
Rule 600 motions.



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       cases. To protect the defendant’s speedy trial rights, Rule 600
       ultimately provides for the dismissal of charges if the
       Commonwealth fails to bring the defendant to trial within 365
       days of the filing of the complaint (the ‘mechanical run date’),
       subject to certain exclusions for delays attributable to the
       defendant. Conversely, to protect society’s right to effective
       prosecution prior to dismissal of charges, Rule 600 requires the
       court to consider whether the Commonwealth exercised due
       diligence, and whether the circumstances occasioning the delay
       of trial were beyond the Commonwealth’s control.          If the
       Commonwealth exercised due diligence and the delay was
       beyond the Commonwealth’s control, the motion to dismiss shall
       be denied. The Commonwealth, however, 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.
       If, at any time, it is determined that the Commonwealth did not
       exercise due diligence, the court shall dismiss the charges and
       discharge the defendant.

Id. at 701-02 (citations and quotation marks omitted).

       We begin with a procedural history in the L.S. matter.    The docket

reveals the Commonwealth filed its complaint against Appellant on January

14, 2009, or 1,248 days4 before trial commenced on June 15, 2012. As of

that date, Appellant’s whereabouts were unknown. Police apprehended him

on September 16, 2009, the day of Appellant’s offenses against B.P.       The

trial court found the 245 days between the complaint and arrest excludable

because the Commonwealth exercised due diligence in apprehending

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4
   Appellant filed several motions for dismissal under then-effective Rule
600(G) throughout the proceedings. He also filed a post-sentence motion
arguing the trial court erred in denying his pre-trial Rule 600 motions.



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Appellant.    The original trial date was July 27, 2010, within one year of

Appellant’s apprehension. At a June 7, 2010 hearing on one of Appellant’s

Rule 600 motions, however, defense counsel indicated he would be on

vacation on that date and was unable to procure another member of the

Philadelphia Public Defender’s office to handle the trial.     The trial court

therefore removed the Public Defender’s office as counsel and appointed new

counsel. New counsel was unable to prepare in time for the July 27, 2010

trial and therefore requested a continuance.     The court scheduled trial for

the next available date, which was March 15, 2011, and noted that the

resulting delay was excludable.5

       The March 15, 2011 proceeding turned out to be a scheduling

conference rather than a trial date, because the case was transferred from

one trial judge to another pursuant to the ongoing reorganization of the

Philadelphia County Court of Common Pleas Criminal Division. At the March

15, 2011 conference, Judge William J. Mazzola set trial for July 7, 2011. On

July, 7, 2011, however, defense counsel withdrew. The trial court appointed

new counsel on September 13, 2011, and set trial for the next available

date, which was March 5, 2012. Trial was continued once again on March 5,

2012, because Judge Mazzola was hearing a trial in another case. On April
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5
  We are sympathetic with Appellant’s frustration at the delay resulting from
defense counsel’s vacation plans. For purposes of Rule 600, however, we
must focus on the diligence of the Commonwealth, not that of defense
counsel.



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13, 2012, the next scheduled trial date, Judge Mazzola was once again

involved in another trial, as was the prosecutor assigned to this matter. The

trial court attributed these two delays to court congestion.                  The next

scheduled trial date was June 15, 2012, at which time the trial took place.

       In summary, the trial court attributed the entirety of the delay

between the original July 27, 2010 trial date and the June 12, 2012 trial to

defense or to court congestion. This 689-day period added to the 245 days

in between the complaint and Appellant’s arrest accounts for 934 days of

delay not attributable to the prosecution. Subtracting those 934 days from

the 1,248 days between the complaint and trial leaves a difference of 314

days. The trial court therefore found no violation of former Rule 600(A)(3).6

       Appellant     first   argues    the     trial   court   erred   in   finding   the

Commonwealth acted with due diligence in apprehending Appellant. Former

Rule 600(C)(1) provides:

             In determining the period for commencement of trial,
       there shall be excluded therefrom […] 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 whereabouts were unknown and could not be
       determined by due diligence.

Pa.R.Crim.P. 600(C)(1), repealed.


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6
  Former Rule 600(A)(3) required trial in this matter to commence within
365 days of the complaint, less any excludable time. See Pa.R.Crim.P.
600(A)(3) (rescinded October 1, 2012, effective July 1, 2013).



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      Appellant     fails   to     cite   any     legal     authority        governing     the

Commonwealth’s        obligation     to   exercise        diligence     in    locating     and

apprehending a defendant. We could deem Appellant’s argument waived on

that basis. See Pa.R.A.P. 2119(b). We decline to do so, however, and our

analysis reveals Appellant’s argument to be lacking in merit.

      As noted above, the Commonwealth bore the burden of proving its

diligence by a preponderance of the evidence. Bradford, 46 A.3d at 702.

Concerning    the     Commonwealth’s            burden     of   proving        diligence     in

apprehending a defendant, we have explained:

           It seems clear that the test is not a venture into hindsight
      reasoning as to whether, if certain individuals had been
      contacted, on [sic] 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
      what was not done. The standard of due diligence demands only
      reasonable efforts.

Commonwealth v. Faison, 471 A.2d 902, 903 (Pa. Super. 1984).

      For example, in Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.

Super. 1991), appeal denied, 606 A.2d 901 (1992), police attempted to

execute the arrest warrant at the defendant’s last known address, posted a

wanted message in the Philadelphia Crime Information Center (“PCIC”), and

maintained surveillance on neighborhoods where they had seen the

defendant in the past.      This Court deemed those efforts sufficient.                  Id. at

737-38.   Similarly, in Commonwealth v. Newman, 555 A.2d 151 (Pa.

Super. 1989), appeal denied, 655 A.2d 512 (Pa. 1995), this Court found



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police exercised sufficient diligence where they posted wanted messages in

the PCIC and National Crime Information Center (“NCIC”), maintained

contact with the defendant’s mother and the victim, and provided other

police departments with wanted posters with the defendant’s name and

likeness on them. Id. at 155. Police also discovered a bench warrant for

the defendant in New York City, where local police eventually apprehended

him. Id.

      In Commonwealth v. Gratkowski, 430 A.2d 998 (Pa. Super. 1981),

police checked the defendant’s last known address, maintained contact with

employees at the defendant’s most recent place of business, and checked

with other police departments. Id. at 1000. The defendant argued police

could have searched for the defendant using records of the Department of

Motor Vehicles, Bureau of Employment Security, or his bank account.           Id.

We    concluded   the   Commonwealth     established   due   diligence   by    a

preponderance of the evidence:

             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.

Id.   Due diligence requires only reasonable efforts, not the exhaustion of

every potential method of locating a defendant. Id. at 1001.




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      Here, the Commonwealth produced the testimony of Detective Joseph

Jenkins. Detective Jenkins testified he conducted a check of police records

and learned Appellant was wanted for a probation violation in Philadelphia.

N.T. Hearing, 6/7/10, at 13. The records search also revealed an address

for Appellant in Chester County. Id. at 14. A search of the Bureau of Motor

Vehicle records revealed no record of Appellant having a driver’s license. Id.

at 15, 22.    Detective Jenkins entered Appellant’s arrest warrant into the

PCIC and NCIC databases. Id. at 17. Detective Jenkins also obtained the

address of Appellant’s mother in Chester County from L.S.            Id. at 18.

Detective Jenkins alerted five police stations in Chester County of the

outstanding arrest warrant for Appellant.      Id. at 19-20, 23.      Detective

Jenkins also enlisted the aid of the United States Marshalls. Id. at 25-26.

Finally, Detective Jenkins maintained contact with the victim’s family. Id. at

26.

      Appellant faults Detective Jenkins for failing to visit either of the

Chester County addresses, for failing to contact Appellant’s mother, and for

failing to check for records with utility companies and state and federal

taxing authorities.   Appellant’s Brief at 18. Appellant also faults Detective

Jenkins for insufficient follow up with the Chester County police.

      Based on the record and the applicable law, we conclude the trial court

acted within its discretion in finding the Commonwealth proved by a

preponderance of the evidence that it exercised diligence in apprehending


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Appellant.     The   evidence,   read    in   a   light   most   favorable   to   the

Commonwealth pursuant to our standard of review, plainly evinces a diligent

search for Appellant. Bradford, 46 A.3d at 70. Detective Jenkins’s search

was at least as diligent as the sufficiently diligent searches described in our

opinions in Ingram, Newman, and Gratkowski.                 The law affords police

officers such as Detective Jenkins discretion to determine which avenues of

discretion will be fruitful. Detective Jenkins was under no obligation to visit

the Chester County addresses if he did not believe he would find Appellant

there.   Moreover, the Chester County addresses are outside of Detective

Jenkins’ jurisdiction. Similarly, Detective Jenkins was not required to search

tax and utility records.   Appellant offers no explanation as to how those

searches would have helped locate Appellant. In summary, Appellant would

have us force the Commonwealth to exhaust every conceivable means of

locating Appellant, but applicable case law holds that an exhaustive search is

unnecessary.

      Appellant is willing, with minor exceptions, to assume “arguendo” that

the remainder of the delay attributable to the defense and to court

congestion is excludable. Appellant’s Brief at 22. He argues only that the

delay attributable to the continuances on March 5, 2012 and April 13, 2012

are chargeable to the Commonwealth because the Commonwealth was not

prepared for trial on those dates.      The record, summarized above, fails to

support Appellant’s argument, inasmuch as Judge Mazzola was unavailable


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on both of those dates. N.T. Hearing, 8/8/13, at 12-13. Judicial delay, as

was   the   case   here,     is     not   attributable   to    the   Commonwealth.

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).

      Concerning   the     B.P.    prosecution,    Appellant   offers   only   several

paragraphs of argument unsupported by legal authority in his Brief.

Appellant’s Brief at 23-24.          This deficiency is of no moment, as the

procedural history pertaining to the defense and judicial delay is precisely

the same in both cases.           The trial court consolidated the L.S. and B.P.

matters by order of March 5, 2012. Prior to that order, however, the cases

were consistently listed together and the same attorney represented

Appellant in both cases. The only distinction between the two cases is that

our analysis of the delay between the date of the L.S. complaint and

Appellant’s eventual arrest is not pertinent, as the B.P. prosecution began

with Appellant’s arrest and the concomitant complaint filed the same day

Appellant completed his assault of B.P. As such, the trial court acted within

its discretion in denying Appellant’s Rule 600 motion in the B.P. prosecution.

      For all of the foregoing reasons, we reject Appellant’s arguments on

appeal and affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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