J-S19020-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellant

                       v.

RAMON GONZALES

                            Appellee                No. 2952 EDA 2014


               Appeal from the Order entered September 19, 2014
              In the Court of Common Pleas of Philadelphia County
                Criminal Division at No: CP-51-CR-0002728-2014


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                                FILED MAY 13, 2016

       The Commonwealth appeals from the trial court’s September 19, 2014

order dismissing all charges against Appellee, Ramon Gonzales, under

Pa.R.Crim.P. 600. We reverse and remand.

       The trial court summarized the underlying facts:

             On October 16, 2012, Detective Martin Sheeron was placed
       in charge of preparing an arrest warrant approved for [Appellee].
       The arrest warrant was approved on October 16, 2012,[1] and
       Detective Sheeron executed the arrest warrant, along with a
       search warrant, on [Appellee’s] residence at 115 East Lippincott
       Street. Detective Sheeron testified the address of 115 Lippincott
       was found in either the DMV database or criminal history
       database. Detective Sheeron and three other police officers
       knocked at the door of 115 East Lippincott Street, but there was
       no reply. The officers then removed the door and searched the
____________________________________________


1
  The certified record contains a criminal complaint dated October 16, 2012,
the same day the warrant for Appellee’s arrest was approved.
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       house but failed to find [Appellee] or any evidence they were
       seeking. After the house was searched, people sitting on their
       porch a couple houses down told the officers the house belonged
       to someone’s cousin, but did not specify whom. The police
       officers attempted to speak to them from the front door, but did
       not walk over to them.          Detective Sheeron then entered
       [Appellee’s] information into NCIC and PCIC systems as a
       warrant, so if [Appellee] was stopped by another officer, he
       would be arrested on the arrest warrant. Detective Sheeron
       then prepared a packet for the warrant unit containing:
       [Appellee’s] information, photos, a copy of the warrant, the NCIC
       entry, affidavit, and other related documents.

              The warrant unit unsuccessfully attempted to execute the
       warrant at 115 East Lippincott Street seven times on: October
       17, 2012, October 31, 2012, November 12, 2012, May 2, 2012
       [sic], August 15, 2013, December 13, 2013, and December 23,
       2013. The warrant, [a]s entered into NCIC, stated, ‘Frequents
       the area of 3000 Lee, 3100 Lee, 100 East Clearfield, and 100
       East Lippincott.’ Detective Sheeron testified he never specifically
       went to the city blocks mentioned in the warrant to search for
       [Appellee], but kept his eyes peeled for him when in those areas
       for other police work. Detective Sheeron further testified he did
       not search for [Appellee’s] address using: the gas company
       records, social security database for addresses, the phone
       company, or Facebook. [Appellee] was arrested on February 23,
       2014, at 940 East Russell Street.

Trial Court Opinion, 6/10/2015, at 1-2 (record citations omitted).

       On July, 28, 2014, Appellee filed a motion to dismiss charges2 under

Pa.R.Crim.P. 600.       The trial court conducted a hearing on September 19,

2014. At the conclusion of that hearing, the trial court entered the order on

appeal dismissing all charges. The sole issue on appeal is whether the trial

court erred in finding the time between the Commonwealth’s complaint and
____________________________________________


2
   The Commonwealth has charged Appellant with attempted murder,
aggravated assault, and unlawful possession of a firearm.



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Appellee’s arrest is chargeable to the Commonwealth for purposes of

Appellant’s Rule 600 speedy trial motion.

         In this case, Rule 600 required the Commonwealth to commence trial

within 365 days of the date of the criminal complaint.               Pa.R.Crim.P.

600(A)(2)(a). The 365-day period includes “periods of delay at any stage of

the proceedings caused by the Commonwealth when the Commonwealth has

failed    to   exercise   due   diligence[.]”   Pa.R.Crim.P.   600(C)(1).      The

Commonwealth filed its complaint on October 16, 2012. Appellee filed his

Rule 600 motion 650 days later, on July 28, 2014. As explained above, the

Commonwealth did not apprehend Appellee until 496 days after it filed the

Complaint. If the 496 days are chargeable to the Commonwealth under Rule

600, we must affirm the trial court’s order.         If they are not, we must

reverse.

               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


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     [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 Commonwealth bears the burden of proving, by a preponderance

of the evidence, that it acted with reasonable diligence in attempting to

apprehend Appellee. Commonwealth v. Newman, 555 A.2d 151, 155 (Pa.

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

            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. We have held that, where the
     Commonwealth exercises due diligence in attempting to locate a
     defendant prior to arrest, the period of elapsed time between the
     date of the filing of the complaint and the date of the arrest is
     excludable[.]




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Id. Due diligence “does not demand perfect vigilance and punctilious care,

but rather a reasonable effort.” Commonwealth v. Laurie, 483 A.2d 890,

892 (Pa. Super. 1984). “[L]ack 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.

       In Laurie, the trial court dismissed charges against the defendant,

noting that police made only one phone call to the defendant’s last known

address. Laurie, 483 A.2d at 892. This Court reversed, noting that police

spoke to the defendant’s family members, checked for information at local

utilities companies, and placed an advertisement in a local newspaper. Id.

at 891. We 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.

Id. at 892 (quoting Commonwealth v. Mitchell, 372 A.2d 826, 832 (Pa.

Super. 1977)). That police could have done more was not sufficient reason

to grant the defendant’s speedy trial motion.3 Id. Police need not “exhaust


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3
    At the time of the Laurie decision, Pa.R.Crim.P. 1100 governed speedy
trials. Rule 1100 has since been amended several times and renumbered
(Footnote Continued Next Page)


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every conceivable method of locating a defendant.” Id. “[T]he focus of our

inquiring is on what was done, not with what should have been done.” Id.

        The Commonwealth also relies on Commonwealth v. Gratkowski,

430 A.3d 998 (Pa. Super. 1981). In Gratkowski, the defendant claimed he

was living and working in Erie County in between the filing of the complaint

against him and his arrest, and that police could have located him through

Department of Motor Vehicles (“DMV”) records, the Bureau of Employment

Security, his local bank account, or the Restaurant Association. Id. at 1000.

The defendant also noted he had family in Erie and the police did not talk to

them. Id. The Commonwealth responded that Appellant left his last known

address three months prior to the complaint. Police spoke to the manager of

Appellant’s last known place of employment, who informed police that

Appellant moved “out west.”            Id.       Several police officers who knew the

defendant by sight kept a lookout for him while on patrol, and local police

contacted other police agencies.             Id.     This Court deemed police efforts

reasonable, and rejected the defendant’s argument that counsel was

ineffective for failing to file a speedy trial motion. Id. at 1001.

        In Ingram, police learned from the defendant’s mother that he had no

intent to return to his last known address and thus only went to that location

once.    Ingram, 591 A.2d at 737.                Instead, they entered the defendant’s
                       _______________________
(Footnote Continued)

Rule 600. No substantive difference between the current and prior versions
of the rule has any bearing on this appeal.



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name into a national database and, during routine patrol, observed locations

where they had seen the defendant in the past.               Id.      The Ingram Court

deemed      these   efforts   reasonable       and    declined   to    exercise   “judicial

hindsight.” Id.

      Appellee relies on Commonwealth v. Williamson, 409 A.2d 101 (Pa.

Super. 1979), in which this Court held that police failed to exercise

reasonable diligence during 22 days between the complaint and the

defendant’s arrest.      During that time, police learned of another charge

against the defendant and his pending arraignment.                 Id. at 103.       Rather

than attempt to locate the defendant immediately, they provided the

warrant to officers scheduled to appear on the date of the defendant’s

arraignment on the other charge. Id. Thus, the defendant was arrested at

an arraignment on an unrelated charge, 22 days after the complaint in

question.    “After the police became aware that appellant was involved in

another pending criminal case [. . .] the means for ascertaining his

whereabouts were at hand.”           Id.   “Whether he was on bail or in jail, a

minimum investigation would have disclosed his whereabouts.”                            Id.

Likewise, Appellee relies on Commonwealth v. Collins, 404 A.2d 1320,

1322-23 (Pa. Super. 1979), in which this Court held police did not exercise

due   diligence     because   they    failed     to   coordinate      with   other   police

departments, including the probation officers overseeing a probation

sentence the defendant was serving at the time. The defendant stated that


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his county probation officer and his state parole officer both knew his

whereabouts. Id. This Court described police efforts as follows:

           A single unsuccessful visit to the homes of two relatives,
     followed a month and one-half later by dropping one’s card at
     the accused’s mother's residence with a request to be contacted
     should the accused come calling, falls far short of due diligence.
     The Commonwealth in fact made no effort until the end of April,
     when Philadelphia police were finally contacted.

Id. at 1323.

     Instantly, police visited Appellee’s last known address—115 East

Lippincott Street—eight times, including the initial attempt to execute the

arrest warrant and seven follow up attempts by the warrant division. N.T.

Hearing, 9/19/2014, at 8, 12, 18-19.      Police located the address through

either DMV records or Appellee’s criminal history. Id. at 9, 16-17. The only

address on Appellee’s criminal extract was 115 East Lippincott. Id. at 25.

Police also entered the warrant into several statewide and national

databases, so that the warrant would be on record in the event another

police department stopped or arrested Appellee. Id. at 11. The databases

also reflected that Appellee was known to frequent the area of “3000 Lee,

3100 Lee, 100 East Clearfield, and 100 East Lippincott[.]” Id. at 15. The

investigating officer visited that location “numerous times” and looked for

Appellee when his other investigations brought him nearby. Id. at 16. The

officer did not run a Google search or search Facebook for information, nor

did he check welfare records, tax records, or utilities records. Id. at 17-18.

Ultimately, police apprehended Appellee at 940 East Russell Street. Id. at

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22.   The record does not reveal the location of 940 East Russell Street in

relation to the locations police believed Appellee frequented.

      To summarize, police attempted eight times to find Appellee at his last

known address.    They also repeatedly watched the neighborhood Appellee

was known to frequent.      Finally, police entered Appellee’s warrant in to

several databases so that he would be arrested if stopped in another

location. In Ingram, police repeatedly observed locations where they had

seen defendant in the past, and entered his warrant into databases. They

only visited the defendant’s last known address once, as they had reason to

believe he would not return. Ingram, 591 A.2d at 737. This Court deemed

the investigation reasonably diligent. Likewise, in Gratkowski, police spoke

to the defendant’s former manager, kept an eye out for him in his last

known neighborhood, and contacted other police departments.         This Court

deemed the investigation reasonably diligent, despite the defendant’s

assertions that police could have found him through DMV records, bank

records, and/or employment records.        The instant case is very similar,

therefore, to Ingram and Gratkowski.

      In Collins and Williamson, on the other hand, the record contained

objective evidence of a lack of diligence. In Williamson, the defendant was

arrested, awaiting arraignment, and possibly in custody on another charge.

In Collins, the defendant was on probation on another charge and under the

supervision of county and state officers. Police in this cases took very little


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action and ignored readily available means of apprehending the defendant

sooner.   Collins and Williamson did not rest on hindsight suggestions of

additional avenues of investigation.

      In light of all of the foregoing, we are constrained to conclude that the

trial court misapplied the law in this case. The search for Appellee here was

similar to searches we have deemed reasonably diligent in other cases. The

availability of other means of potentially locating Appellee—tax records,

welfare records, and utilities company records—does not alter the result.

We have repeatedly held that police officers are entitled to deference in

choosing which means of locating a defendant will be the most effective.

Laurie, 483 A.2d at 892.       Also, Rule 600 requires us to balance the

accused’s speedy trial rights against the need to protect society.    Ramos,

936 A.2d at 1100. We conclude the trial court erred in granting Appellee’s

Rule 600 motion and dismissing all charges. We therefore reverse the trial

court’s order and remand for further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2016

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