J-A08041-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :    IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                    Appellee             :
                                         :
                    v.                   :
                                         :
ERIK ALEXANDER CLARK,                    :
                                         :
                    Appellant            :    No. 913 MDA 2014

       Appeal from the Judgment of Sentence Entered April 29, 2014
               in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0002682-2013

BEFORE:    SHOGAN, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                         FILED MAY 29, 2015

      Erik Alexander Clark (Appellant) appeals from the judgment of

sentence entered following his convictions for robbery and receiving stolen

property. We affirm.

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

follows.

            On October 27, 2011, three black males entered the Fulton
      Bank at 3183 Susquehanna Trail, Manchester Township in York
      County around 11:20 a.m. All three males appeared to be armed
      with guns. Two of the men approached the counter and
      demanded money from the bank tellers. The third male acted as
      a lookout for the other two and stood watching the entrance/exit
      to the bank. The men wore bandanas over their faces to conceal
      their identit[ies], and one of the men demanding the money
      carried an orange bag. After getting the money, the three black
      males fled the bank and jumped into a vehicle traveling down
      Susquehanna Trail. Witnesses identified this vehicle as a gold
      Dodge with Maryland license plate 5AK6030. These witnesses
      also observed the vehicle flashing its lights, and the driver
      picking up three masked individuals running away from the

*Retired Senior Judge assigned to the Superior Court.
J-A08041-15


     Fulton Bank. Police ran this tag and found that the car was
     registered to Wendy Melissa Brown Clark. Wendy Clark is
     [Appellant’s] mother.

           Around 1:00 p.m. on the same day as the bank robbery,
     Officer Michael Davis of the York City Police Department
     discovered the suspect vehicle being towed on Market Street.
     Officer Davis pulled over the tow truck and discovered that the
     vehicle was being taken to InTown Motors. The vehicle had been
     towed from 581 West Clarke Avenue in York city. Officer Davis
     contacted Northern Regional, and Northern Regional Police
     Department took custody of the vehicle.

           Later that day, Chris Ness, the owner of the property from
     which the suspect vehicle was towed, was contacted by a male
     seeking to find his vehicle. Mr. Ness directed him to InTown
     Motors and also contacted police. The same individual made
     contact with InTown Motors inquiring about the vehicle, and
     InTown Motors informed police that a man was coming to pick
     up the suspect vehicle. Officer Davis responded to InTown
     Motors and hid in the shop area until the man arrived. Once the
     man arrived and inquired about the suspect vehicle, Officer
     Davis took him into custody. The man was identified as
     [Appellant].

            After taking [Appellant] into custody, he was searched.
     Officer Anderson testified that he found car keys to the suspect
     vehicle, a Maryland drivers license, a wallet, and a thick wad of
     cash with a rubber band wrapped around it. When counted, the
     wad of cash totaled $1,291.00, which Officer Anderson
     calculated to be almost exactly one-fourth of the amount taken
     from Fulton Bank. Officer Anderson also interviewed [Appellant]
     after taking him into custody. [Appellant] denied all involvement
     in the bank robbery and denied that his vehicle was at the Fulton
     Bank. [Appellant] also stated that he had his vehicle all morning
     and that no one else had used his vehicle.

           Corporal Jack Asper testified that he conducted the search
     of the suspect vehicle. A search warrant for the vehicle was
     obtained regarding the robbery investigation before any search
     was conducted. The search was conducted 4 to 5 hours after the
     robbery occurred. Corporal Asper found the missing front license
     plate in the trunk of the vehicle. Maryland law requires a plate



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      on both the front and back of the vehicle. An orange, nylon bag
      was also located inside the vehicle, which seemed to match the
      description of what the armed robbers were carrying. Corporal
      Asper noted that the nylon bag was soaking wet; however, the
      interior of the vehicle was completely dry. He also noted it was
      rainy and wet all day, including the time of the robbery. Finally,
      Corporal Asper found five ends of marijuana cigarettes in the
      vehicle’s ashtray.

            On June 19, 2012, [Appellant] entered a plea of guilty to
      possession of a small amount of marijuana under 35 P.S. § 780-
      113(a)(31). On November 19, 2012, Officer Anderson filed
      formal charges against [Appellant] for the robbery of Fulton
      Bank.

Trial Court Opinion, 9/3/2014, at 2-4.

      On May 31, 2013, Appellant filed an omnibus pre-trial motion seeking

to suppress the items found during his search incident to arrest and to

dismiss his case under the compulsory joinder rule.        That motion was

denied, following a hearing, on September 10, 2013. On March 10, 2014,

the morning of trial, Appellant filed a motion to dismiss pursuant to

Pennsylvania Rule of Criminal Procedure 600, which was denied following a

pre-trial hearing. The matter proceeded to a jury trial. On March 13, 2014,

Appellant was convicted of the aforementioned charges.         On March 27,

2014, Appellant was sentenced to an aggregate term of 3 to 6 years’

incarceration.   This timely appeal followed.    Both Appellant and the trial

court complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises three issues on appeal.




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      1. Whether the trial court erred in denying Appellant’s motion to
      suppress challenging his arrest and [the] search incident to that
      arrest?

      2. Whether the trial court erred in denying Appellant’s motion to
      dismiss pursuant to 18 Pa.C.S.[] §110?

      3. Whether the trial court erred in denying Appellant’s motion to
      dismiss pursuant to Rule 600?

Appellant’s Brief at 4.

      In his first question, Appellant argues that the trial court erred in

denying the portion of his omnibus pretrial motion in which he sought to

suppress evidence recovered following his arrest. Appellant’s Brief at 12-14.

Specifically, Appellant contends that he was arrested without probable

cause; therefore, all evidence recovered after his illegal arrest should be

suppressed. Id.

      We have discussed our review of suppression claims as follows:

      When considering the denial of a suppression motion, this
      Court’s review is limited to determining whether the
      [suppression] court’s factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are correct. Because the Commonwealth prevailed in the
      suppression court, we consider only the Commonwealth’s
      evidence and so much of the appellant’s evidence as is
      uncontradicted when read in the context of the record as a
      whole. Where the record supports the suppression court’s factual
      findings, we are bound by those facts and may reverse only if
      the legal conclusions drawn from them are erroneous.

Commonwealth v. West, 937 A.2d 516, 527 (Pa. Super. 2007) (internal

citations omitted).




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J-A08041-15


      At the suppression hearing, Appellant, through counsel, stipulated to

the following facts.

            On October 27th, 2011, Sergeant Anderson with the
      Northern York County Regional Police Department responded to
      3183 Susquehanna Trail Fulton Bank for report of an armed
      robbery. [W]itness Cheryl Hoke, reported seeing three black
      males fleeing the bank getting into a gold Dodge with the license
      number 5AK6030 and identified the driver as possibly being
      female. Surveillance video showed three black males committing
      the robbery. Sergeant Anderson placed a general alert on the
      vehicle.

            [A]t approximately 1300 hours, Officer Davis with the York
      City Police Department observed the suspect vehicle with a
      matching tag number being towed in the area of East Market
      Street in York City and stopped the tow truck with the vehicle in
      that area. [T]he tow truck driver advised that the vehicle had
      been towed from 581 West Clark Avenue at the request of
      property owner Chris Ness where the vehicle was illegally parked
      with the front license plate removed.

            []Officer Anderson responded to the scene of the tow truck
      vehicle stop and impounded the vehicle taking it to the Northern
      Regional Police Department. Sergeant Anderson then responded
      to 581 West Clark Avenue where he made contact with David
      Tauser who informed him that the vehicle had been found
      parked in front of his garage when Tauser came to work at
      approximately 1200 hours. At 1428 hours Chris Ness, the
      property owner at 581 West Clark Avenue, contacted the York
      City Police Department to inform them that a subject had called
      to claim the vehicle and that that subject was in route to
      [In]Town Motors. Based upon this information, Officer Davis with
      the York City Police Department, responded to [In]Town Motors
      where [Appellant] was found to be present and claiming the
      vehicle. Officer Davis took [Appellant] into custody[.]

N.T., 7/2/2013, at 7-9 (reformatted into paragraphs).

      Following the hearing and after consideration of the parties’ briefs, the

trial court denied Appellant’s motion, holding as follows.



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J-A08041-15


     [T]he police had probable cause to take [Appellant] into custody
     at InTown Motors after [Appellant] arrived to retrieve his vehicle.
     The [c]ourt must consider the facts and circumstances known by
     [Sergeant] Anderson at the time [Appellant] was placed in
     custody. First, [Sergeant] Anderson knew that a bank robbery
     occurred at Fulton Bank, and he had surveillance footage of the
     incident taking place. Second, he gathered that three black
     males entered the bank and one suspect drove the getaway
     vehicle. Third, eyewitnesses informed [Sergeant] Anderson of
     the make, model, color and license plate number of the getaway
     vehicle. Lastly, when this vehicle was later found by the police
     and taken to InTown Motors, it was [Appellant] who inquired and
     arrived at InTown Motors to pick up the vehicle. This fact alone
     links [Appellant] to the getaway vehicle used in the armed
     robbery. All these facts taken together warrant a person of
     reasonable caution to believe that [Appellant] participated in the
     robbery of the Fulton Bank.

Trial Court Opinion, 9/3/2014, at 5-6.

     We evaluate the trial court’s reasoning mindful of the following.

     It is well-established that there are three categories of
     interaction between citizens and police officers. As our Supreme
     Court has clearly articulated:

           The first of these is a “mere encounter” (or request
           for information) which need not be supported by any
           level of suspicion, but carries no official compulsion
           to stop or to respond. The second, an “investigative
           detention” must be supported by a reasonable
           suspicion; it subjects a suspect to a stop and a
           period of detention, but does not involve such
           coercive conditions as to constitute the functional
           equivalent of an arrest. Finally, an arrest or
           “custodial detention” must be supported by probable
           cause.

Commonwealth v. Ranson, 103 A.3d 73, 76-77 (Pa. Super. 2014)

(citations omitted). In point of fact, “law enforcement authorities must have

a warrant to arrest an individual in a public place unless they have



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J-A08041-15


probable cause to believe that 1) a felony has been committed; and

2) the person to be arrested is the felon.” Commonwealth v. Dozier,

99 A.3d 106, 112 (Pa. Super. 2014) (emphasis in original).

      The facts to which Appellant stipulated, when viewed in the light most

favorable to the Commonwealth, reveal that Sergeant Anderson and Officer

Davis had probable cause to believe that the individual inquiring about the

suspect vehicle was involved in the robbery that had occurred earlier that

day. Accordingly, the arrest and the search incident to that arrest were

justified. See e.g. Commonwealth v. Powers, 398 A.2d 1013 (Pa. 1979)

(holding that the police had probable cause to arrest three men who were in

the general area and fit the description of suspects in an assault that had

occurred 15 minutes before); Commonwealth v. Saab, 409 A.2d 437 (Pa.

Super. 1979) (holding that there was probable cause to arrest the defendant

a half-hour after the crime occurred and three and one-half blocks from the

scene, based on the victim’s general description). Thus, applying the above

standards, we discern no error in the trial court’s decision to deny

Appellant’s motion to suppress.

      In Appellant’s second issue, he contends that the trial court erred in

denying his motion to dismiss brought pursuant to 18 Pa.C.S. § 110.

Appellant’s Brief at 14-17.   Specifically, Appellant argues that, because he

was charged separately with, and pled guilty to, possession of the marijuana

recovered during the search incident to his arrest on the date of the robbery,



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J-A08041-15


his criminal liability for his actions that day had been decided and the district

attorney was precluded from trying him for the robbery under Section 110.

Id.

      It is well-established that

            Section 110 of the Pennsylvania Rules of Criminal
      Procedure governs when a prosecution is barred by a former
      prosecution for a different offense, and thus serves as a
      statutory enforcement mechanism for protecting a defendant’s
      Double Jeopardy rights in Pennsylvania’s criminal courts. In
      Commonwealth v. Pries, 861 A.2d 951 (Pa. Super. 2004), we
      held that:

            the compulsory joinder rule, set forth at [18 Pa.C.S.
            § 110], bars a subsequent prosecution if all prongs
            of the following test are met:

            (1) the former prosecution resulted in an acquittal or
            conviction [as defined by 18 Pa.C.S. § 109] ; (2) the
            current prosecution was based on the same criminal
            conduct or arose from the same criminal episode;
            (3) the prosecutor in the subsequent trial was aware
            of the charges before the first trial; and (4) all
            charges were within the same judicial district as the
            former prosecution.

Commonwealth v. Miskovitch, 64 A.3d 672, 686 (Pa. Super. 2013).

When dealing with an issue arising under section 110, our scope of review is

plenary. See Commonwealth v. M.D.P., 831 A.2d 714, 717 (Pa. Super.

2003).

      It is undisputed that Appellant’s drug possession charges ended in a

conviction. At issue here is whether the robbery was based upon the same

criminal episode as the drug possession. As both parties and the trial court




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J-A08041-15


point out, the facts of this case are similar to those presented to this Court

in Commonwealth v. Lane, 658 A.2d 1353 (Pa. Super. 1995). The victim

in Lane, Anthony Whiting, was robbed at gunpoint in April of 1992. Id. at

1354. Approximately four months later, Whiting identified Lane as one of his

attackers. Id. Lane was arrested and, following a search incident to that

arrest, was discovered to be in possession of crack cocaine, cash, and a gold

chain belonging to Whiting. Id.    Lane was charged with the April robbery

and with drug possession at separate criminal indictments. Id.            The

Commonwealth did not move to consolidate the charges.               Lane was

ultimately acquitted of the robbery and subsequently moved to dismiss the

drug possession charges under Section 110.       Id.   The trial court granted

Lane’s motion.   This Court reversed the trial court’s order dismissing the

drug possession charges, reasoning that “the robbery and the drug charges

were not temporally or logically related, nor did they have common issues of

law or fact. The only similarity was that [Lane] was arrested for the crimes

at the same time and [Lane] coincidentally possessed one of the robbery

items at the time of the arrest.” Id. at 1357.

      Appellant herein argues that Lane is distinguishable, primarily because

of the four-month time frame between the robbery and Lane’s arrest.

Appellant’s Brief at 15-17. Appellant contends that the six-hour difference

between the robbery and his arrest creates a temporal, logical, and factual

correlation between the two crimes. Id. at 16. We disagree.



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             Several factors are considered when determining whether
      a number of criminal charges arose from a single criminal
      episode: (1) the temporal sequence of events; (2) the logical
      relationship between the acts; and (3) whether they share
      common issues of law and fact. Two separate offenses may
      constitute the same criminal episode if one offense is a
      necessary step in the accomplishment of a given criminal
      objective or if additional offenses occur because of an attempt to
      secure the benefit of a previous offense or conceal its
      commission.

Lane, 658 A.2d at 1355 (quotations and citations omitted).

      “Robbery and possession of a controlled substance are not the same

criminal act.” Id. at 1356. As in Lane, the two crimes at issue here do not

share common issues of law or fact such that Section 110 would bar

prosecution of the robbery.    Moreover, Appellant has failed to convince us

that the temporal relationship between the robbery and the drug possession

is anything but coincidental. Regardless of how much time elapsed between

the burglary and Appellant’s arrest, “[t]he two offenses [are] not part of the

same criminal episode simply because evidence pertinent to both cases was

found during the same search.” Id. at 1357. Accordingly, we find no error in

the trial court’s denial of Appellant’s motion to dismiss under Section 110.

See also Commonwealth v. Stewart, 465 A.2d 161 (Pa. Super. 1984)

(holding that Section 110 did not bar prosecution for drug possession

offense filed after Stewart’s arrest for theft, stating “there is no basis in the

evidence here presented for finding that [Stewart’s] possession of controlled




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J-A08041-15


substances commenced at the time of the theft or at the time when

appellant came into possession of the stolen property.”).

      In his final issue, Appellant challenges the trial court’s denial of his

motion to dismiss under the “speedy trial rule,” Pa.R.Crim.P. 600.1

Appellant’s Brief at 17-19.



1
 Rule 600 sets forth the speedy trial requirements and provides in pertinent
part:

      Rule 600. Prompt Trial

      (A) Commencement of Trial; Time for Trial

      (1) For the purpose of this rule, trial shall be deemed to
      commence on the date the trial judge calls the case to trial, or
      the defendant tenders a plea of guilty or nolo contendere.

      (2) Trial shall commence within the following time periods.

            (a) Trial in a court case in which a written complaint
            is filed against the defendant shall commence within
            365 days from the date on which the complaint is
            filed.

                                    ***

      (C) Computation of Time

            (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.



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J-A08041-15


     “In evaluating Rule 600 issues, our standard of review of a trial court’s

decision is whether the trial court abused its discretion.” Commonwealth v.

Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc). Further, we note:

     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.

Id. at 1238-39 (internal citations and quotation marks omitted) (emphasis

added).

     Instantly, for Rule 600(A)(2) purposes, the Commonwealth was

required to bring Appellant to trial on or before November 19, 2013.

Appellant was ultimately tried on March 10, 2014. Thus, a total of 477 days

elapsed from the time the complaint was filed until the date of trial. While

he concedes the 102 days between the filing of his omnibus pre-trial motion



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J-A08041-15


and the trial court’s denial of that motion constitute excludable time,

Appellant maintains that the Commonwealth did not exercise due diligence

at various points during the remaining 375 days, resulting in a violation of

Rule 600. Appellant’s Brief at 18-19.

     Appellant takes issue specifically with the nine days that elapsed

between the filing of the criminal complaint and Appellant’s arraignment on

November 28, 2012, and the six days between the issuance of a bench

warrant for Appellant on September 13, 2013, and the subsequent return of

that warrant on September 19, 2013. Id.      Finally, Appellant disputes the

Commonwealth’s contention that the unavailability of his co-defendant

rendered certain time excludable. Id.

            The Commonwealth must do everything reasonable within
     its power to guarantee that a trial begins on time, and 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. We must therefore determine
     whether the aforesaid violation occurred because of the
     Commonwealth’s failure to exercise due diligence in bringing
     Appellant’s case to trial, or whether it was the result of factors
     beyond the Commonwealth’s control, despite its exercise of due
     diligence.

Commonwealth v. Colon, 87 A.3d 352, 359 (Pa. Super. 2014) (citations

and quotations omitted).

     With respect to the nine-day delay outlined above, the Commonwealth

argued at the Rule 600 hearing that such time was excludable because the



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J-A08041-15


Commonwealth proceeded with due diligence in extraditing Appellant, a

resident of Maryland, following the issuance of the criminal complaint and

arrest warrant. N.T., 310/2014, at 15-16. The trial court agreed. Id. at 19,

20-21. We discern no error in the trial court’s assessment. See Pa.R.Crim.P.

Comment (“For purposes of paragraph (C)(1) and paragraph (C)(2), the

following periods of time, that were previously enumerated in the text of

former Rule 600(C), are examples of periods of delay caused by the

defendant. . . .    In addition to any other circumstances precluding the

availability of the defendant or the defendant’s attorney, the defendant

should be deemed unavailable for the period of time during which the

defendant contested extradition, or a responding jurisdiction delayed or

refused to grant extradition[.]”).

      The record reflects that Appellant was present in Maryland at the time

the complaint was filed. An arrest warrant was issued, and Appellant was

extradited to York County the following week.2 We disagree with Appellant’s

claim that the Commonwealth failed to exercise due diligence in returning

Appellant to Pennsylvania. Accordingly, we find no error in the trial court’s

determination that those nine days constituted excludable time.

      Further, we agree with the trial court’s assessment that the six-day

delay following the issuance of a bench warrant for Appellant due to his bail


2
 This Court notes that Appellant’s arrest warrant was issued the day before
Thanksgiving.


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J-A08041-15


violations was not attributable to the Commonwealth’s lack of due diligence.

N.T., 3/10/2014, at 14. See Commonwealth v. Gorham, 491 A.2d 1368

(Pa. Super. 1985) (holding that delay following defendant’s violation of the

conditions of his bail was not attributable to the Commonwealth).

      Finally, we reject Appellant’s argument that the time his joined co-

defendant was unavailable for trial was not excludable under the Rule. See

Commonwealth v. Kimbrough, 872 A.2d 1244 (Pa. Super. 2005) (holding

that delay caused by joined co-defendant is not attributable to the

Commonwealth when separate trials would have required the duplication of

testimony and evidence, and would have imposed the burden of two lengthy

trials on the trial court).   Although Appellant argues that the cases were

eventually severed, at the time of the delay the parties were properly joined,

thus any delay caused by the joined co-defendant’s absence from the

jurisdiction is not attributable to the Commonwealth.

      Computing the time as required by Rule 600(C)(1) reveals that the

Commonwealth brought Appellant to trial within 365 days. Accordingly, we

discern no error in the trial court’s denial of Appellant’s Rule 600 motion.

      Judgment of sentence affirmed.




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J-A08041-15




Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 5/29/2015




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