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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

JEFFREY HARRIS

                            Appellant                No. 1686 MDA 2014


           Appeal from the Judgment of Sentence September 5, 2014
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-CR-0000327-2013


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                      FILED FEBRUARY 11, 2016
        Appellant, Jeffrey Harris, appeals from the judgment of sentence

entered by the Luzerne County Court of Common Pleas following his

convictions for resisting arrest, possession of a controlled substance, and

use of drug paraphernalia.       We affirm.

        The trial court set forth the relevant factual history of this case as

follows.

        Both Officer Anthony Panzarella and Corporal Joseph Babula of
        the Hazleton Police Department testified at trial.       Officer
        Panzarella testified that at approximately 2:08 a.m. on October
        18, 2012, he was dispatched to 200 Pine Street, Hazleton,
        Pennsylvania. There was a report of a male wearing black or
        dark clothing. According to Officer Panzarella, who has been a


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Hazleton Police Officer since 2011, this area, at this time of
     night, is not “the best” area to be frequenting.

     When he arrived at the scene, he was in his working uniform and
     in a marked patrol car. He noticed a man wearing dark clothing
     emerging from the front porch area. The individual noticed
     Officer Panzarella and began staggering and stumbling down the
     street as to avoid contact with the officer.         The officer
     approached the male, who was later identified as the Appellant.
     The two men were standing face-to-face.           The Appellant
     continued to sway back and forth, adjusted his feet, and there
     was a strong odor of alcohol. Officer Panzarella determined that
     Mr. Harris was under the influence and began to ask him
     questions, such as his name and what he was doing there.

     Mr. Harris became uncooperative. He continually kept his hands
     in his pockets, digging into his pockets. Officer Panzarella
     advised the Appellant that he was being placed under arrest for
     public drunkenness. Mr. Harris responded, “F--- you. I don’t
     want to talk to you.” (N.T. 52: 22-25). At this point, Mr. Harris
     turned and ran away from Officer Panzarella. When Officer
     Panzarella directed the Appellant to get on the ground, the
     Appellant failed to comply. He was asked numerous times and
     the Appellant had no intention to comply to the police directives
     and continued running. Officer Panzarella believed that there
     were safety concerns.

     Corporal Babula arrived at the scene. The two officers pursued
     the Appellant for about one block. Mr. Harris attempted to
     evade the police by running around a park[ed] car.
     Unfortunately, [sic] for the Appellant as he came around the
     vehicle he met up with Corporal…[Babula], who directed him to
     “Stop. And get on the ground.” It was at this time that he
     showed sign[s] of stopping. The officers grabbed him and
     tackled him to the ground. Mr. Harris continued to dig his hands
     into his pockets, particularly the right pocket.

     Mr. Harris continued to resist by not allowing the officers to
     handcuff him, even though he was directed to stop and just give
     the officers his hands. Appellant’s resistance reached the point
     that it required the officers to use substantial force. That is,
     Officer Panzarella, after giving him numerous opportunities to
     comply, struck the [A]ppellant in the rib cage area at close
     range. Officer Panzarella again directed Mr. Harris to stop. Mr.

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      Harris again did not comply. Officer Panzarella struck him again
      in the rib cage area at close range. Once again[,] Officer
      Panzarella directed the Appellant to stop. Again, Mr. Harris
      failed to comply, and he was struck again in the rib cage area at
      close range by Officer Panzarella. Finally, Appellant gave up and
      the officers were able to control his hands. After searching the
      Appellant’s jacket, the officers found two baggies in his right
      front pocket which contained cocaine. In addition, Appellant
      possessed a knife on his person.

Trial Court Opinion, at 7-9.

      Harris filed an omnibus pre-trial motion seeking to suppress the items

found during the search and to dismiss the resisting arrest charge.

Thereafter, Harris filed a motion to dismiss pursuant to Rule 600 of the

Pennsylvania Rules of Criminal Procedure.           The trial court denied both

motions after holding a pre-trial hearing.     The case proceeded to trial.     A

jury convicted Harris of resisting arrest, possession of a controlled

substance, and use of drug paraphernalia.           The trial court imposed an

aggregate term of six to twelve months’ imprisonment, followed by 24

months’ probation. This timely appeal followed.

      On appeal, Harris raises three issues for our review. In his first issue,

Harris argues that the trial court erred in denying his Rule 600 motion, thus

violating his right to a speedy trial.     Specifically, Harris argues that the

mechanical    run   date   for   Rule   600   was    exceeded,   and   that   the

Commonwealth did not establish that it had exercised due diligence in

bringing the case to trial. See Appellant’s Brief, at 9-11.

      Rule 600 requires the Commonwealth to bring a defendant, who is at

liberty on bail, to trial within 365 days of the filing of the criminal complaint.


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See Pa.R.Crim.P. 600(A)(2)(a). Our scope and standard of review on this

issue are as follows.

      Our standard of review relating to the application of Rule 600 is
      whether the trial court abused its discretion. Our scope of review
      is limited to the evidence on the record of the Rule 600
      evidentiary hearing and the findings of the trial court. We must
      view the facts in the light most favorable to the prevailing party.

Commonwealth v. Robbins, 900 A.2d 413, 415 (Pa. Super. 2006)

(citation omitted).

      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.

Commonwealth v. Hunt, 858 A.2d 1234, 1239 (Pa. Super. 2004) (en

banc) (citation omitted; brackets in original).

      “If the Commonwealth attempts to bring a defendant to trial beyond

the 365 day-period prescribed by Rule 600, and the defendant filed a Rule

600 motion to dismiss, the court must assess whether there is excludable

time and/or excusable delay.” Id., at 1241. The court must exclude from

the time for commencement of trial any periods during which the defendant

was unavailable, including any continuances requested by the defendant.

See Pa.R.Crim.P. 600(C).     The amount of excludable time is added to the


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mechanical    run   date   to   arrive    at   an   adjusted   run   date.   See

Commonwealth v. Ramos, 936 A.2d 1097, 1103 (Pa. 2007).

      If the trial takes place after the adjusted run date, we must apply a

due diligence analysis to assess whether the delay was excusable. See id.

‘“Excusable delay’ is not expressly defined in Rule 600, but the legal

construct takes into account delays which occur as a result of circumstances

beyond the Commonwealth’s control and despite its due diligence.” Hunt,

858 A.2d at 1241 (citation omitted). Due diligence must be determined on a

case-by-case basis.    See id.     “Due diligence does not required perfect

vigilance and punctilious care, but rather a showing by the Commonwealth

that a reasonable effort has been put forth.”        Id., at 1241-1242 (citation

omitted). “[J]udicial delay is a justifiable basis for an extension of time if

the Commonwealth is ready to proceed.” Id. (citation omitted).

      A period of delay that is excusable results in an extension to the

adjusted run date. See Ramos, 936 A.2d at 1103. Extensions added to the

adjusted run date produce the final Rule 600 run date.          See id. The trial

court must dismiss the charges if the Commonwealth does not bring the

defendant to trial on or before the final run date. See id.

      In the instant case, the Commonwealth filed its complaint on October

18, 2012.    Thus, the mechanical run date was October 18, 2013.             See

Pa.R.Crim.P. 600(A)(2)(a). The trial did not commence until July 28, 2014.

On October 31, 2012, Harris requested that his preliminary hearing be

continued.   Then, after several more continuance requests by Harris, the

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preliminary hearing was held on January 23, 2013.          The 84-day period

between October 31, 2012 and January 23, 2013 attributable to Harris’s

continuances is excludable pursuant to Rule 600(C). Addition of 84 days of

excludable time results in an adjusted run date of January 10, 2014.

       The pre-trial conference was scheduled for July 5, 2013; however, on

that day, Harris requested another continuance.      The pre-trial conference

was rescheduled for October 25, 2013. The 112-day period between July 5,

2013 and October 25, 2013 attributable to Harris’s continuance is excludable

pursuant to Rule 600(C). Addition of 112 days of excludable time results in

an adjusted run date of May 2, 2014.

       We next consider the 95-day period between October 25, 2013 and

January 28, 2014.          For reasons unclear on the record, the pre-trial

conference did not take place on October 25, 2013. The sole docket entry

for that day states, “Court will issue order with new date.”     Docket Entry

10/25/13. On January 28, 2014, the court issued an order rescheduling the

pre-trial conference.1 The trial court concluded that this 95-day delay was

excusable time because the Commonwealth did not cause it. See Trial Court

Opinion, at 5. We agree with the trial court’s determination and conclude

that this delay was the result of judicial inaction, rather than any misconduct
____________________________________________


1
   The trial court stated that the court issued the order on January 27, 2014;
however, January 28, 2014 is the correct date of the order because it was
filed on that day.




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on behalf of the Commonwealth.             Thus, the trial court did not abuse its

discretion in finding that the 95-day period between October 25, 2013 and

January 28, 2014 is excusable.             Addition of this 95-day period to the

adjusted run date dictates that the final run date in this matter could not

have come earlier than August 5, 2014. Since Appellant’s trial took place on

July 28, 2014, the trial court properly denied Harris’s Rule 600 motion. 2

Thus, Harris’s first issue on appeal lacks merit.

       In   his   second    issue,   Harris    challenges   the   sufficiency   of   the

Commonwealth’s evidence to support his conviction for resisting arrest.

“The standard for review is whether the evidence admitted at trial, and all

reasonable inferences drawn therefrom, when viewed in the light most

favorable to the Commonwealth as verdict winner, was sufficient to enable

the factfinder to conclude that the Commonwealth established all of the

elements of the offense beyond a reasonable doubt.”               Commonwealth v.

Thompson, 922 A.2d 926, 928 (Pa. Super. 2007) (citation omitted).

       “The offense of resisting arrest is established when a ‘person … with

the intent of preventing a public servant from effecting a lawful arrest or

discharging any other duty … creates a substantial risk of bodily injury to the

public servant or anyone else, or employs means justifying or requiring
____________________________________________


2
  Because it is clear that Harris’s trial took place before the extended run
date, we need not analyze the entire record to determine whether the final
run date is August 5, 2014 or some later date.



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substantial force to overcome the resistance.’” Id. (quoting 18 Pa.C.S.A. §

5104).   Harris argues that his flight from the arresting officers does not

constitute resisting arrest.   See Appellant’s Brief, 10/19/15, at 13. Harris

also argues that he merely used “passive resistance” to the officers’

attempts to arrest him because he did not “strike, kick, shove, push, pull, or

take any other action in an attempt to harm any of the officers.” Id.

      Harris’s argument completely ignores the statutory language of section

5104 that criminalizes resistant behavior that requires substantial force to

surmount. Officer Panzarella testified that when Harris was advised he was

being placed under arrest, he cursed, ran away, and continued to run

despite being commanded to stop.         See N.T., Trial, 7/28/14, at 52-55.

When the officers finally stopped Harris, he continued to resist arrest by

digging his hands into his pockets and refusing to let the officers handcuff

him. See id., at 53-58. Both Officer Panzarella and Officer Babula testified

that Harris’s behavior raised safety concerns and that his continued

resistance required them to use substantial force. See id., at 53-58, 95-99.

Because Harris’s “passive resistance” required the officers to use substantial

force to overcome, we conclude that there was sufficient evidence for

upholding a resisting arrest conviction.      Thus, Harris’s second issue on

appeal merits no relief.

      In his third and final issue, Harris contends that the trial court erred in

denying his suppression motion. Harris argues that he was arrested without

probable cause; therefore, all evidence recovered after his illegal arrest

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should have been suppressed.       See Appellant’s Brief, at 13-17.     In the

alternative, Harris argues that if he was seized as part of an investigative

detention, the seizure was unconstitutional because it occurred in the

absence of reasonable suspicion. See id.

      “Once a motion to suppress evidence has been filed, it is the

Commonwealth’s burden to prove, by a preponderance of the evidence, that

the challenged evidence was not obtained in violation of the defendant’s

rights.”    Commonwealth v. Wallace, 42 A.3d 1040, 1047-1048 (Pa.

Super. 2012) (en banc) (citations omitted).

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record as a whole. Where the record supports the findings of
      the suppression court, we are bound by those facts and may
      reverse only if the legal conclusions drawn therefrom are in
      error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citation

omitted).

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation omitted).             However, the



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suppression court’s conclusions of law, which are not binding on an appellate

court, are subject to plenary review.    See Commonwealth v. Johnson,

969 A.2d 565, 567 (Pa. Super. 2009).

     The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our Constitution protects citizens from unreasonable searches

and seizures.     See In the Interest of D.M., 781 A.2d 1161, 1163 (Pa.

2001). Generally, the police must obtain a warrant to arrest a suspect in a

public place.   See In re. R.P., 918 A.2d 115, 120 (Pa. Super. 2007).

However, an officer may arrest a suspect without a warrant if the officer has

probable cause to believe the suspect arrested has committed or is

committing a criminal offense. See Commonwealth v. Williams, 568 A.2d

1281, 1286 (Pa. Super. 1990).       “To determine whether probable cause

exists to justify a warrantless arrest, we must consider the totality of the

circumstances.”     Commonwealth v. Clark, 735 A.2d 1248, 1252 (Pa.

1999) (citation omitted).   “Probable cause to arrest exists where the facts

and circumstances within the police officer’s knowledge … are sufficient in

themselves to warrant a person of reasonable caution in the belief that an

offense has been committed by the person to be arrested.” In re. R.P., 918

A.2d at 121 (citation and quotation marks omitted). “Probable cause must

be viewed from the vantage point of a prudent, reasonable, cautious police

officer on the scene at the time of the arrest guided by his experience and

training.” Id. (citation and quotation marks omitted).




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      “It is well established that a warrantless search incident to a lawful

arrest is reasonable, and no justification other than that required for the

arrest itself is necessary to conduct such a search.” Id., at 1283 (citations

omitted).   “Consequently, any evidence seized as a result of a search

incident to a lawful arrest is admissible in later proceedings.” Id. (citation

omitted).

      Under the Crimes Code, a person is guilty of the summary offense of

public drunkenness if he appears in a public place under the influence of

alcohol to the degree that he may endanger himself or others or annoy

persons in his vicinity. See 18 Pa.C.S.A. § 5505.

      In the present case, Officer Panzarella responded to a complaint by

neighbors, who reported that a male wearing black or dark clothing was

outside, in the vicinity of 200 Pine Street, banging on doors and yelling.

See N.T., Trial, 7/28/14, at 48.      When Officer Panzarella arrived, he

witnessed Harris emerging from the front porch of 200 Pine Street dressed

in a black leather jacket.   See id., at 49-52.     When Officer Panzarella

approached Harris on the street, he noticed that Harris’s speech was slurred

and the smell of alcohol was on his breath. See id., at 50-51. Harris was

staggering and refused to remove his hands from his pockets when

instructed to. See id., at 50-53. Based on the totality of the circumstances,

we conclude that prior to the search, the officers had probable cause to

arrest Harris for the summary offense of public drunkenness. Therefore, the




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officers were permitted to search Harris’s person, incident to the lawful

arrest, and seize the evidence incident thereto.

       We note that our conclusion is not altered by the fact that Harris was

never charged with public drunkenness. See Commonwealth v. Canning,

587 A.2d 330, 332 (Pa. 1991). Probable cause requires only the probability

of criminal activity, not a prima facie showing.           See id.   “Once probable

cause is established, it does not dissipate simply because the suspect is not

charged with the particular crime which led to the finding of probable cause.”

Id. Probable cause is based on the facts and circumstances known at the

time   of   the   arrest;   thus,   subsequent    events    are   irrelevant   to   the

determination of probable cause.        See id.    Therefore, because there was

probable cause to arrest Harris, the officers were justified in searching Harris

incident to that arrest, and the evidence was properly admissible. Harris’s

third issue on appeal merits no relief.

       Because we conclude that none of Harris’s issues on appeal merit

relief, we affirm the judgment of sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/11/2016



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