J-S39015-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

VERNON LEROY EALY, JR.

                            Appellant                   No. 1925 MDA 2015


             Appeal from the PCRA Order Entered October 9, 2015
                In the Court of Common Pleas of Franklin County
       Criminal Division at Nos: CP-28-CR-0000747-2013, and CP-28-CR-
                                  0000748-2013


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

MEMORANDUM BY STABILE, J.:                           FILED OCTOBER 28, 2016

        Appellant Vernon Leroy Ealy, Jr. appeals from the October 9, 2015

order of the Court of Common Pleas of Franklin County (“PCRA court”),

which denied his request for collateral relief under the Post Conviction Relief

Act1 (“PCRA”). We affirm.

        On August 31, 2010, the Chambersburg Police Department filed two

criminal complaints against Appellant.2        Both complaints charged Appellant

with one count of Manufacture, Delivery, or Possession with Intent to Deliver

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    42 Pa.C.S.A. §§ 9541-46.
2
 Unless otherwise specified, these facts come from the PCRA court’s October
9, 2015 opinion.
J-S39015-16



and one count of Criminal Use of Communication Facility. 3          On the same

date it filed the complaints, Chambersburg Police received an arrest warrant

for the two cases.

        The first attempt to serve the warrant took place on September 2,

2010, when Sergeant Rosenberry of the Chambersburg Police Department

visited Appellant’s last known address.4         N.T., PCRA Hearing, 8/5/2015, at

43-44. Appellant, however, was not present. Instead, Sergeant Rosenberry

spoke with Appellant’s mother who informed him that Appellant no longer

lived there and had moved to “New York or New Jersey.”                Id. at 44.

Sergeant Rosenberry then provided her with his business card and left. Id.

Later that same day, Sergeant Rosenberry received a phone call from

Appellant.    Appellant asked Sergeant Rosenberry why he had spoken with

his mother, whereupon Rosenberry informed Appellant of the warrant and

the need to return to Pennsylvania. Appellant did not turn himself in. N.T.,

PCRA Hearing, 8/5/2015, at 45.

        Efforts to locate and apprehend Appellant continued after September

2, 2010.5     In February of 2011, Officer Jones again checked Appellant’s
____________________________________________


3
    35 Pa.C.S.A. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.
4
  As of September 2, 2010, Appellant’s last known address was 436 South
Main Street in Chambersburg, Pennsylvania. N.T., PCRA Hearing, 8/5/2015,
at 44.
5
 Chambersburg Police kept track of their efforts to locate Appellant by using
an attempted warrant service log. N.T., PCRA Hearing, 8/5/2015, at 45.
The log in this case had more entries than usual. Id. at 56.



                                           -2-
J-S39015-16



Chambersburg address.           On February 4, 2011, two other officers found

information on Facebook indicating that Appellant was attending the Anthem

Institute in New Jersey.         Acting on this lead, the officers contacted the

Hillside Police Department in New Jersey and supplied them with Appellant’s

National Crime Information Center (“NCIC”) information. Later, in February

of 2012, Officer Leisher received notification that Appellant would be in the

Chambersburg area. In response, he went to visit Appellant’s mother at her

address on South Main Street.6 Nonetheless, Appellant continued to elude

capture.

       Officers also availed themselves of other tools to determine Appellant’s

whereabouts. Sergeant Rosenberry, for his part, would occasionally use an

internet database to check for addresses associated with Appellant.        N.T.,

PCRA Hearing, 8/5/2015, at 46.                 During one such search, Sergeant

Rosenberry noticed that Appellant’s address had changed in March of 2013.

Id. at 46-47.         Following normal protocol for the situation, Sergeant

Rosenberry called the Orange Police Department in New Jersey and asked

that they check the new address.7                Id. 47, 49.   The Orange Police



____________________________________________


6
  Sergeant Rosenberry testified that officers visited Appellant’s mother on at
least three occasions. N.T., PCRA Hearing, 8/5/2015, at 48.
7
  According to the attempted warrant service log, various officers had
contacted law enforcement in New Jersey three times prior to Sergeant
Rosenberry’s call to the Orange Police Department. Id. at 54.



                                           -3-
J-S39015-16



Department thereafter apprehended Appellant on March 13, 2013.         Id. at

54.

      On March 10, 2014, Appellant entered a guilty plea to both counts of

Manufacture, Delivery, or Possession with Intent to Deliver. The trial court

immediately sentenced him to twenty to sixty months’ incarceration on each

count.     The court ordered the sentences to run concurrently and that

Appellant receive credit for time served. Appellant thereafter filed a notice

of appeal, which he withdrew on May 6, 2014.       He then filed the present

PCRA petition on June 30, 2014. The PCRA court denied Appellant’s petition

on October 9, 2015 and this timely appeal followed.

      The single issue on appeal is whether the PCRA court properly

determined that the Commonwealth exercised due diligence in locating and

apprehending Appellant.    See Appellant’s Brief at 5.   For such an inquiry,

our standard of review is whether the PCRA court’s findings are free of legal

error and supported by the record. Commonwealth v. Martin, 5 A.3d 177,

182 (Pa. 2010) (quoting Commonwealth v. Abu-Jamal, 833 A.2d 719,

723 (Pa. 2003)).     Thus, “[t]he PCRA court’s factual determinations are

entitled to deference, but its legal determinations are subject to our plenary

review.”    Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super.

2013) (quotation omitted).

      After careful review of the record, and the relevant case law, we

conclude that the PCRA court accurately and thoroughly addressed the issue

on appeal. See PCRA Court Opinion, 10/8/15, at 6-14; PCRA Court’s Rule

                                    -4-
J-S39015-16



1925(a) Opinion, 12/7/15. Accordingly, we affirm the PCRA court’s October

9, 2015 order denying Appellant’s request for collateral relief.   We further

direct that a copy of the PCRA court’s October 9, 2015 opinion and

December 7, 2015 Rule 1925(a) opinion be attached to any future filings in

this case.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/28/2016




                                    -5-
        ••
    •                                                                                        Circulated 07/26/2016 03:17 PM
.   '
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                                         J


                                                                    Filed       DEC 07 2015
                                                                   ~~.~--:::::-~~~~~-
                                                                    ~       ~;_
                                                                   ---~               ~
                                                                            ~       Clerk




              IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL DISTRICT OF
                          PENNSYLVANIA-FRAN.KLIN COUNTY BRANCH

             Commonwealth of Pennsylvania                          Criminal Action
                                                                                    V-              v
                                                                   No. 747-2013;          48-2013
                             v.
                                                                   Post-Conviction Collateral Relief
             Vernon L. Ealy, Jr.,
                               Defendant                          JUDGE JEREMIAH D. ZOOK


                                                          ORDER

                     Now this 7th day of December,              2015, the Clerk of Courts of Franklin
             County is directed to transmit              the foregoing Opinion Pursuant to Pa.R.A.P.
             1925(a) to the Prothonotary of the Superior Court of Pennsylvania pursuant to
             Pa.R.A.P.    1931(c).




             The Clerk of Courts shall give notice to:
             Matthew A. Sembach, Esq., Attorney for Defendant
             Franklin County District Attorney's Office
         Defendant,      Vernon L. Ealy, Jr.,1 appeals                 from the Order of

    Court entered on October 8, 2015.2                 The Defendant          filed a Notice

of Appeal on October 30, 2015.                   On November 5, 2015, this Court

entered an Order directing the Defendant to file within 21 days a

concise      statement        of matters        complained         of on appeal.             The

Defendant filed a concise statement                  on November 10, 20153 raising

one issue, whether the Court erred by concluding that trial counsel

1 Defendant is an individual represented by Matthew A. Sembach, Esq ..
2 Denying the Defendant's Amended Petition for Post-Conviction Collateral Relief
3 The Court notes that attached to the concise statement was a certificate of service stating that
the Defendant served a copy of the statement on the Court; however, the Court never received a
copy.
Commonwealth       v. Ealy                                CR ... o, 747-2013;   CR 748-2013

Opinion Pursuant   to PA.R.A.P. 1925(a)                                               Page2


had a reasonable basis for not filing a motion to dismiss pursuant

to Pa.R.Crim.P. 600.

        The reasons          for the Order appealed       from in this case were

adequately set forth in this Court's Opinion and Order of Court filed

of record on October 8, 2015. A copy is attached for ease of review.

It is respectfully           requested      that the Superior Court affirm in all

respects.

The Clerk of Courts shall give notice to:
Matthew A. Sembach, Esq., Attorney for Defendant
Franklin County District Attorney's Office
                                                  Filed       OCT      ff) 8   2015




       The above captioned        matter   is before      the court      upon     Defendant's

Amended Petition for Post Conviction Relief Pursuant to the Post Conviction Relief

Act (hereinafter PCRA Petition) filed on February          11, 2015.      The Court held a

hearing on the PCRA Petition on August 3, 2015, during which Defendant was

represented     by Shane B. Kope, Esq .. 1 The Court heard testimony from Joseph

Labbate,      Todd M. Sponseller,     Esq.,   Defendant,      and      Sergeant       Anthony

Rosenberry of the Chambersburg        Police Department.       The matter is now ready

for decision.




1 The Court   notes that Matthew A. Sembach, Esq., was appointed as counsel            for the
Defendant; however, Shane B. Kope, Esq., appeared for the hearing in his stead.
                                           PROCEDURAL HISTORY

             On August 31, 2010, the Chambersburg                  Police Department        charged the

    Defendant       by      two   separate     criminal       complaints    with     two     counts    of

    Manufacture,       Delivery, or Possession         with Intent to Manufacture or Deliver.?

    and two counts of Criminal Use of Communication Facility.3 An arrest warrant

    was issued in both cases the same date.

            On April 3, 2013, Defendant was arrested in New Jersey.                   Bail was set on

    the same date; it was modified on April 16, 2013.                      On June     20, 2013,      the

    Commonwealth           filed an Information. in the above captioned dockets.               On June

    26, 2013, Defendant appeared and waived formal arraignment.

            On August 27, 2013, Defendant                 appeared4 for call of the list and made

    an application for continuance which the Courts denied.                  On August 29, 2013,

    Defendant      filed    a Motion for Continuance,            which the Court"          granted and

    continued   the matter to November               12, 2013.    The time between August 29,

    2013,    and     November        12,     2013,     was     excluded     from     the     period   of

commencement               of trial under Pa.R.Crim.P. 600.

            On August 29, 2013, Defendant,                through counsel, filed an Omnibus Pre-

Trial Motion. That same date, the Court granted Deborah K. Hoff, Esq., leave to

withdraw as privately retained               counsel, and appointed Michael J. Toms, Esq.,

the Franklin County Public Defender, to represent                     Defendant.      On September


2 35 Pa.C.S. § 780-l 13(a)(30).
3 18 Pa.C.S. § 7512(a).
4 At this time the Defendant    was represented by Deborah K. Hoff, Esq ..
s By the Honorable Shawn D. Meyers in CR 747-2013 and the Honorable Douglas W. Herman
in CR 748-2013.
6 By the Honorable Douglas W. Herman in both dockets.



                                                      2
      10, 2013, Attorney Toms filed a Motion for Appointment of Counsel Because of

      Conflict of Interest.7   By Order dated September         9, 2013,s the Court granted

     counsel's     Motion and appointed Todd M. Sponseller,              Esq., as counsel     for

     Defendant.

            On September       9, 2013,9 the Court, upon review of Defendant's        Omnibus

     Motion,10 entered an Order directing the Commonwealth                  to respond    to the

     Defendant's    Motion within 14 days and scheduling the matter for a hearing on

     December      16, 2013.    On September        27, 2013, the Commonwealth           filed an

    Answer to Pre-Trial Omnibus Motion.

            On October 10, 2013, Defendant filed a Motion for Reduction of Bail. On

    October 14, 2013,11 the Court-? entered an Order directing the Commonwealth

    to file a response within ten days and scheduled              a hearing on Defendant's

    Motionfor Reduction of Bail on November 20, 2013.

            On October    31, 2013, Defendant filed a Motion for Continuance, which

    the Court granted on the same date, continuing the matter                 to January 13,

2014, and excluding the period of time between October 31, 2013 and January

    13,   2014, for the period of commencement           of trial pursuant to Pa.R.Crim.P.

600.        On December 13, 2013, Defendant filed a Motionfor Continuance, which

the Court granted on the same date continuing               the matter to March 10, 2014,



7 This   Motion was filed after the Court granted the Motion.
B  Filed of record on September 10, 2013.
9 Filed of record on September     11, 2013.
 10 Filed of record on August 29, 2013.
 11 Filed of record on October 16, 2013.
 12 This Order and all orders issued      between October 14, 2013,   and March 23, 2015, were
issued by the Honorable Douglas W. Herman.

                                                3
     and excluding the period of time between December 13, 2013, and March 10,

     2014, for purposes of Pa.R.Crim.P. 600.

            On December         16, 2013,    the Court    convened     for a hearing   on the

     Defendant's Omnibus Motion; the Court also granted Defendant an extension to

     file a notice of alibi to February         15, 2014.     On February       28, 2014,   the

     Commonwealth filed a Motion to Consolidate Cases for Trial in dockets CR 747-

     2013 and CR 748-2013.           The Court granted said Motion on March 5, 2014.

           On March 3, 2014,           the Court conducted     a Pre-Trial Conference       and

 entered a Pre-Trial Order of Court. On March 10, 2014, Defendant pled guilty to

 one count of Manufacture,             Delivery, or Possession with Intent to Manufacture

 or Deliver+' in both above captioned dockets.               Defendant was sentenced        the

 same       date   to 20 months          to 60 months       on each    count,   to be served

 concurrently,       and with credit for time previously served from March 11, 2013,

 to March 10, 2014.

           On April 9, 2014, Defendant,         through counsel, filed an Application for

Leave to Proceed In Forma Pauperis, Notice of Appeal, and                        Request for

Transcripts.        Contemporaneously        with said filings, Attorney Sponseller filed a

Petition for Leave of Court to Withdraw as Counsel.                  On April 15, 2014, the

Court entered an Order directing              Defendant     to file a concise statement      of

matters complained of on appeal pursuant              to Pa.R.A.P. l 925(b). On April 16,

2014, the Court granted leave to Attorney Sponseller to withdraw as counsel

and appointed          the law firm of Kulla, Barkdoll,        and Stewart,     to represent


13   35 Pa.C.S. § 780-l 13(a)(30).

                                                 4
     Defendant.     On May 6, 2014, Defendant, through counsel, withdrew his Notice

     of Appeal.

           On June       30, 2014, Defendant      filed a pro se Motion for Post-Conviction

     Collateral Relief     On July     14, 2014, the Court entered          an Order granting

     Defendant in forma pauperis status,       appointing Brett Beynon, Esq., as counsel

     for the Defendant, granting Defendant leave to file an amended petition within

     thirty days, and granting the Commonwealth          thirty days to file a response.       On

     October 21, 2014, Attorney Beynon filed a Motion to Withdraw as Courisel+"

     On October 30, 2014, the Court granted Attorney Beynon's Motion to Withdraw

     as Counsel and        appointed    Matthew     A. Sembach,       Esq.,   as   counsel     for

 Defendant.

          On February       12, 2015, Defendant,      through    counsel, filed an Amended

 Petition for Post-Conviction Collateral Relief          On March 24, 2015, the Court=

 scheduled an evidentiary hearing on the PCRA Petition for May 1, 2015, at 2:30

p.m..       On April 22, 2015,         the Commonwealth         filed a Motion to Continue

Evidentiary Hearing.          On April 23, 2015, the Court granted said Motion and

continued         the matter to May 22, 2015, at 9:00 a.m .. The Commonwealth filed

a Motion to Continue on May 11, 2015, which the Court granted on May 13,

2015,16 setting the matter for hearing on June 5, 2015, at 9:00 a.m ..




14 It is unclear to the Court why this Petition was filed more than four months after counsel was
appointed and significantly beyond the deadline for filing of an amended petition.
15 This Order and all subsequent   orders were entered by the Undersigned.
16 Filed of record on May 14, 2015.


                                                5
         On June 1, 2015, Defendant filed a Motion for Continuance.             The Court

  granted    said Motion on June 2, 2015,17            setting the matter   for hearing on

 August 3, 2015 at 9:00 a.m .. The Court conducted the evidentia:ry hearing as

 scheduled     on August 3, 2015, during which the Court heard testimony from

 Joseph Labbate, Todd M. Sponseller,          Esq., Defendant, and Sergeant Anthony

 Rosenberry of the Chambersburg Police Department.                At the conclusion of the

 hearing, the Court       entered an Order-'' directing the Commonwealth          to file a

 written argument        not later than August     21, 2015, and Defendant        to file a

 response not later than September         11, 2015.      The Commonwealth     timely filed

 its Memorandum         of Law on August 20, 2015.         Defendant    timely submitted a

 Brief to the Court in chambers on September 2, 2015; however, the Brief was

 not filed of record.    By Order dated September 30, 2015, the Court directed the

Clerk of Courts to file Defendant's Brief of record.         This matter is now ready for

decision.

                                        DISCUSSION

        A. The Post Conviction Relief Act.

       The Post Conviction Relief Act (PCRA)was enacted to provide individuals

who are convicted of crimes for which they are innocent, or those serving illegal

sentences, with a means to obtain collateral relief.           See 42 Pa. C.S.A. § 9543.

To be eligible      for relief under    the statute,     a petitioner   must prove by a

preponderance of the evidence that he is currently serving a sentence and that

the issues raised in his petition have not been previously litigated or waived.

11 Filed of record on June 3, 2015.
is Filed of record on August 5, 2015.

                                             6
 42 Pa. C.S.A. § 9543 (a)(l). The petitioner must also prove by a preponderance

 of the evidence that his conviction resulted from a circumstance              enumerated       in

 42 Pa. C.S. § 9543(a)(2), and that "the failure to litigate the issue prior to or

 during trial, or during unitary review or direct appeal" was not the result of a

 "rational, strategic or tactical decision by counsel."          Id.§ 9543(a)(4).

         B. Claims of Ineffective Assistance of Counsel.

         The Defendant    alleges that trial counsel           was ineffective.      Under the

 PCRA, a Petitioner may obtain relief if they can prove by a preponderance                 of the

 evidence their conviction or sentence            resulted    from ineffective assistance      of

counsel.     42 Pa. C.S.A. § 9543(a)(2)(ii). "It is well established          that counsel is

presumed      effective, and to rebut that presumption,           the PCRA petitioner must

demonstrate     that counsel's performance was deficient and that such deficiency

prejudiced    him."   Commonwealth         v. Johnson,       51 A.3d 237, 243 (Pa. Super.

2012).

         To succeed on a claim of ineffectiveness            of counsel, the petitioner must

prove 1) the underlying      legal issue has arguable            merit; 2) counsel's    actions

lacked an objectively reasonable          basis, and 3) actual prejudice resulted          from

counsel's act or omission.      See Commonwealth             v. Tedford, 960 A.2d 1, 12 (Pa.

2008) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). All three

prongs of the ineffectiveness      test must be proven or counsel's               assistance   is

deemed constitutionally      effective.     See Commonwealth           v. Harvey, 812 A.2d

1190, 1196 (Pa. 2002).        Pursuant      to the above standards,         this Court now

analyzes the sole issue raised by the Defendant.


                                              7
          C. Issue Raised - Rule 600 Violation.

          Defendant    asserts   that   courisel-?   was ineffective for failing to file a

 motion to dismiss pursuant          to Pennsylvania     Rule of Criminal Procedure 600

 (the "speedy trial" rule). Rule 600 provides that "[t]rial 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." Pa.R.Crim.P. 600(A)(2)(a).

 The Complaint was issued on August 31, 2010, and the Defendant plead guilty

 in both dockets on March 3, 2014.          Defendant asserts that his speedy trial date

 should have been August 31, 2011, and that the period of delay between

 August 31, 2010, and March 10, 2014, was caused by the Commonwealth as

 they failed to exercise due diligence in bringing the case to trial.

        The mechanical run time between August 31, 2010, and March 10, 2014,

is   1,287 days.      The Court previously granted Defense continuances             excluding

the time period between August 29, 2013, to November 12, 2013,20 to January

 13, 2014,21 and finally to March 3, 2014.22             There is no dispute       that these

periods    fall under Pa.R.Crim.P.       600(C)(2) and are excluded         for purposes of

Pa.R.Crim.P. 600(A)(2). These continuance requests by the Defendant result in

the exclusion of 187 days from the Pa.R.Crim.P. 600 calculation.




19 The Court notes that the Defendant was represented by no less than three attorneys before
the Trial Court.    His PCRA is directed at Attorney Sponseller alone; as such, the Court's
references to "counsel" hereafter refer to Attorney Sponseller.
20 By Order dated August 29, 2013.

21 By Order dated October 31, 2013.     This Order excluded the time period between October 31,
2013, and January 31, 2013.
22 By Order dated December 13, 2013.      This Order excluded the time period between December
13, 2013, and March 10, 2014.

                                               8
            The    pnmary      Issue   raised    In   the         PCRA Petition is whether             the

     Commonwealth        exercised     due diligence         in    attempting     to apprehend         the

     Defendant    during the 1,100 days between August 31, 2010,23 and August 29,

     2013.24     Pursuant   to Pa.R.Crim.P.     600(C)(l) "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. To determine whether the

     Commonwealth      exercised due diligence:

           the test is Not a venture into hindsight reasoning as to whether, if
           certain individuals had been contacted, or 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.

 Comm. v. Hinton, 409 A.2d 54, 57 - 58 (Pa.Super.                         1979)    (capitalization     m

 original).

           Defendant's claim is without merit as the Commonwealth                     exercised due

 diligence in attempting         to serve the arrest warrant on the Defendant.                       Sgt.

 Rosenberry       testified that on September 2, 2010, he was part of a Warrant Task

Force with the United            States   Marshals     Office and attempted            to serve the

warrant.       Sgt. Rosenberry made contact with Defendant's mother at 436 Main

Street, Chambersburg,           Pennsylvania,     which was the Defendant's              last known

address.       Sgt. Rosenberry informed Defendant's                Mother why he was there, that


23   The date the Complaint was filed.
24   The date the Defendant first requested a continuance.

                                                  9
  he had a warrant for the Defendant's arrest, and gave her his business card.

 Defendant's mother informed the Sergeant that Defendant was residing in the

 New York or New Jersey area.           That same date, Sergeant Rosenberry received a

 telephone call from Defendant-> wherein the Defendant                 inquired into why Sgt.

 Rosenberry      was     at   his   mother's      residence.    Sgt.   Rosenberry   informed

 Defendant about the warrant and that he needed to come in; Defendant asked

 Sgt. Rosenberry why the warrant was issued.

         The Commonwealth introduced into evidence Commonwealth's                   Exhibit 1

 which consisted of an Attempted WmTant Service Log prepared                    by numerous

 officers.    Several    officers made notes on the warrant            service logs, and Sgt.

 Rosenberry noted that the log in this case was significantly more detailed and

had more entries than a standard attempted warrant service log.                 On February

3, 2011, Officer Jones checked Def end ant's last known address and did not get

an answer.      On February 4, 2011, Defendant was found on Facebook where it

appeared he was attending the Anthem Institute in New Jersey as a full time

student.      Officers contacted the Hillside Police Department           in New Jersey and

sent Defendant's        National Crime Information Center (NCIC) information to the

Hillside Police Department.

        In February      2012, Officer Leisher received        information   that Defendant

would be in the Chambersburg              area.      On this information,    Officer Leisher

visited Defendant's      mother to ask about Defendant.           Defendant's   mother was

contacted at least three times concerning Defendant's whereabouts.                  Sergeant

zs Sergeant  Rosenberry testified that the phone call he received came from a phone number
believed to be owned by the Defendant.

                                               10
 Rosenberry     testified    that when        he receives    an address     where    a wanted

 defendant    is residing out of state, the standard practice is to contact the local

 police department to have them serve the warrant.

        In March 2013, Defendant          was located in New Jersey through a TL026

 search.     Sergeant     Rosenberry    contacted law enforcement         in New Jersey and

 requested they respond to the address.               Defendant   was arrested in New Jersey

 by the Orange Police Department.

        For purposes of Rule 600:

       excusable    delay occurs     where     the delay is caused       by
       'circumstances beyond the Commonwealth's control and despite its
       due diligence.' 'Due diligence is a fact-specific concept that must
       be determined on a case-by-case basis.       Due diligence does not
       require perfect vigilance and punctilious care, but rather a showing
       by the Commonwealth that a reasonable effort has been put forth.'

 Comm. v. Roles,         116 A.3d      122,    125 (Pa.Super.      2015) (internal   citations

omitted).     The Court heard credible testimony from Sergeant Rosenberry                 that

the Attempted Wm,ant Service Log27 had significantly                  more entries than the

typical case.      The Court heard            testimony from James        Labbate, a private

investigator from Spartan Detective Agency in Union New Jersey.                  Mr. Labbate

testified that he was able to conduct a reverse skip trace28 on Defendant's

whereabouts from August 2010 to April 3, 2013; the results                    of this search

listed numerous         addresses   that appear to be Defendant's         addresses.s?   This

report lists an address for Defendant from January 1, 2006 to February                     15,

2015, of 436 S. Main St., Chambersburg,               PA 17201. This address was checked

26 TLO is a free law enforcement database.
21 See Commonwealth Ex. l.
zs See Defendant's Ex. 1.
29 The Defendant testified that these were indeed the addresses where he was residing.


                                                 11
     numerous      times by police, as it was the address            where Defendant's       Mother

     resided.     Additionally,     the reverse      skip trace>" and the Attempted          Warrant

     Service Log31 contain         an address       of 1111 Salem Ave., Hillside, N.J.; Sgt.

     Rosenberry     testified    that   the Hillside Police Department          was contacted      to

     attempt service of the arrest warrants.

           While the Defendant argues that the Commonwealth                    did not put forth a

     reasonable effort because there were numerous              things they could have done to

     locate the Defendant,        that is not the standard       the Court must apply to the

     efforts of the Commonwealth.               "The matter   of availability and due diligence

 must be judged by what Was done by the authorities rather than what was not

 done."         Commonwealth            v. Hinton,     409    A.2d   54,    57 -    58    (Pa.Super.

     1979)(capitalization       in original).      In Commonwealth         v. Mitchell,   the police

 department        had an address, which was checked multiple times, and circulated

 a photograph of the defendant.                 Commonwealth v. Mitchell, 372 A.2d 826, 832

 (Pa. 1977). In Mitchell, the defendant argued that because he received public

 assistance,      the police should have been able to arrest him on the first day he

 could pick up a check following the warrant                  being issued.     Id. However, the

Court in Mitchell found that there was nothing in the record indicating                          the

police knew the defendant was obtaining public assistance,                    nor that he became

employed        after the issuance         of the warrant,      as the police had no direct

connection with the employer.              Id.



30    See Defendant's Ex. 1.
31    See Commonwealth Ex. 1.

                                                     12
            Defendant      in this case argues that he should have been easily located

 because he changed his address with the New Jersey Department                               of Motor

 Vehicles,       attended      the Jersey      Tractor     Trailer   School,   graduated     from the

 Anthem Institute, applied for federal help through the FAFSA program, applied

 for Social Security Benefits,          received health benefits through the State of New

 Jersey, received food stamps and cash payment through the SNAP program,

 and received job placement             services through         the New Jersey Department          of

 Labor and Industry.           See Defendant's Ex. 2 - 6. As was in the case in Mitchell,

 there is nothing in the record to show that the Commonwealth                               knew that

 Defendant was receiving public assistance or where he was employed after the

warrant was issued.             Furthermore,      after receiving information of Defendant's

attendance            at the   Anthem    Institute        in New Jersey,       the Commonwealth

contacted         the Anthem       Institute     in New Jersey          in an attempt       to locate

Defendant.            "It is not the function of our courts to second guess the methods

used by police to locate arrested persons."                 Commonwealth v. Mitchell, 372 A.2d

826, 832 (Pa. 1977).

          Because the Commonwealth exercised reasonable efforts in attempting to

locate Defendant,           the time between the filing of the Criminal Complaint on

August 31, 2010, and the date Defendant was arrested32 would be excluded in

the calculation          of time pursuant       to Pa.R.Crim.P. 600(c).          Further,    because

there is no dispute that the time periods between August 29, 2013, and March

3, 2014, were previously excluded pursuant to Pa.R.Crim.P. 600, the result is a


32   April 3, 2013.

                                                     13
 total of 1, 133 days would have been excluded for purposes of calculating the

 Defendant's     right to a speedy trial.    As Defendant pled guilty on March            10,

 2014,     the total number of non-excludable        days between       the filing of the

 Criminal Complaint and the time the Defendant entered a plea of guilty is 154

 days; therefore, there was no violation of Pa.R.Crim.P. 600.

         Based upon      the evidence   presented,       it is clear to the     Court    that

Defendant's       argument   lacks   merit    as   the    Commonwealth        would     have

successfully met their burden by a preponderance of the evidence that they

acted with due diligence to bring the matter to trial.          Therefore,    trial counsel

was      not   ineffective for failing to file a motion       to dismiss      pursuant     to

Pa.R.Crim.P. 600.       See Commonwealth v. McBee, 520 A.2d 10, 14 (Pa. 1986).

Because the Court finds that Defendant's argument lacks merit, the Court will

not address the remaining prongs of the ineffectiveness            of counsel analysis.

See Commonwealth v. Harvey, 812 A.2d 1190,           1196 (Pa. 2002).

                                     CONCLUSION

         This Court's   review of the record and survey of the law reveals that

Defendant is not entitled to relief under the PCRA. Trial counsel was not

ineffective for failing to file a motion to dismiss pursuant to Pa.R.Crim.P.             600

as such motion would have been meritless.                 Consequently,      the claims of

Defendant are without merit and the instant PCRA Petition will be denied.                An

appropriate order follows.




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