J-S06035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

SAMUEL REYES,

                         Appellant                   No. 2152 MDA 2014


         Appeal from the Judgment of Sentence October 24, 2014
            In the Court of Common Pleas of Luzerne County
           Criminal Division at No(s): CP-40-CR-0003159-2012


BEFORE: PANELLA, J., MUNDY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                    FILED JANUARY 28, 2016

      This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Luzerne County following Appellant’s conviction by a

jury on the charge of possession of a firearm prohibited, 18 Pa.C.S. §

65(a)(1). On appeal, Appellant contends the trial court erred in denying his

motion to suppress the firearm seized by the police, as well as his motion to

dismiss pursuant to Pa.R.Crim.P. 600. We affirm.

      The relevant facts and procedural history are as follows: On May 30,

2012, a criminal complaint was filed against Appellant, and he was released

on bail. On January 18, 2013, Appellant filed a counseled pre-trial motion

seeking to suppress the firearm seized by the police, and on March 1, 2013,

the trial court conducted a hearing, at which a sole witness, Police Officer

Joseph Ziegler, testified. Specifically, Officer Ziegler testified that, on May

*Former Justice specially assigned to the Superior Court.
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29, 2012, at approximately 11:15 p.m., he received a dispatch “for a male

in the area of Wood Street that was threatening a female with a firearm.”

N.T. 3/1/13 at 3.   The male was described as “a Hispanic male wearing a

black shirt and a black hat.” Id. at 4. Officer Ziegler arrived at the area

within ten or fifteen seconds, and a man riding a bicycle on the street

“pointed out [Appellant] as the person he called about.”      Id. at 28.    The

officer indicated that, when he drove slowly by the man on the bicycle, the

man started pointing at Appellant and said, “He’s right there, he’s right

there.” Id. at 29. Officer Ziegler noted that, prior to the instant incident, he

knew the man who was riding the bicycle. Id.

      The officer drove “maybe 10 feet[ ]” and saw Appellant, who matched

the description of the suspect, walking down the middle of the road. Id. at

5.   Coming within fifteen feet of Appellant, Officer Ziegler stopped his fully-

marked patrol car, exited it, and told Appellant to “come towards [the] car,

put his hands on the hood.”      Id. at 6.   Appellant proceeded towards the

front of the police vehicle and, when he was about two feet from the front

bumper, he asked the officer, “What?” Id. at 7. Officer Ziegler responded,

“Wilkes-Barre police, put your hands on the hood of my car.” Id. At this

point, Appellant turned and ran.

      Officer Ziegler drew his taser and, after chasing Appellant for just five

feet, he noticed Appellant was holding a black semiautomatic pistol in his

right hand.   At this point, while continuing to chase Appellant, the officer


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holstered his taser and drew his firearm.        Throughout this time, Officer

Ziegler directed Appellant to “stop and drop the weapon[;]” however,

Appellant did not comply.    Id. at 9.     Instead, Appellant “hopped a fence”

with Officer Ziegler unable to follow. Id. at 10-11.

      Other responding officers took Appellant into custody on a nearby

street, but Appellant was not in possession of the firearm when he was

apprehended. However, Officer Ziegler discovered the firearm “[j]ust on the

other side of the fence that [Appellant] . . . scaled.” Id. at 11. The firearm

was loaded.

      At the conclusion of the hearing, the trial court denied the suppression

motion, and on April 17, 2014, Appellant filed a motion to dismiss under

Pa.R.Crim.P. 600.   The trial court took the motion “under advisement,” and

on July 9, 2014, the trial court denied the motion to dismiss without a

hearing.   Thereafter, the case proceeded to a jury trial, and the jury

convicted Appellant on the sole offense.

      On September 24, 2014, the trial court sentenced Appellant to six

years to twelve years in prison; however, on September 30, 2014, the trial

court, on its own motion, vacated the sentencing order.       On October 24,

2014, the trial court re-sentenced Appellant to five years to ten years in

prison, and on October 30, 2014, Appellant filed a counseled notice of

appeal.    The trial court directed Appellant to file a Pa.R.A.P. 1925(b)




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statement, Appellant timely complied, and the trial court filed a responsive

Opinion.

      Appellant’s first contention is the trial court erred in denying his

motion to suppress the firearm seized by the police.     Appellant alleges he

was subjected to an investigative detention when Officer Ziegler initially

ordered him to “come towards [the] car, put his hands on the hood[,]” N.T.

3/1/13 at 6, and that such seizure occurred without the requisite reasonable

suspicion.   In this vein, Appellant contends the description of the suspect

was “no more than ‘a Hispanic male wearing a black shirt and a black

hat[,]’” and the officer stopped him merely because he was “a male

Hispanic.”   Appellant’s Brief at 7.   Further, Appellant suggests there were

inconsistencies between the 911 call sheet, which indicated a male was

sending threatening text messages to a female, and Officer Ziegler’s

testimony that the 911 dispatcher told him there was a male threatening a

female with a firearm.

            Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is limited to determining
      whether the factual findings are supported by the record and
      whether the legal conclusions drawn from those facts are
      correct.
                  [W]e may consider only the evidence of the
            prosecution and so much of the evidence for 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
            court erred in reaching its legal conclusions based
            upon the facts.


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Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa. Super. 2008) (en

banc) (citations, quotations, and quotation marks omitted). Moreover, it is

within the lower court’s province to pass on the credibility of witnesses and

determine the weight to be given to their testimony. See Commonwealth

v. Clemens, 66 A.3d 373, 378 (Pa. Super. 2013).

      Under constitutional jurisprudence, there are three categories of

interactions between police and a citizen.

      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. Fleet, 114 A.3d 840, 845 (Pa. Super. 2015) (quotation

omitted).

      Here, assuming, arguendo, Appellant is correct in asserting that he

was subjected to an “investigative detention” when Officer Ziegler ordered

him to “come towards [the] car, put his hands on the hood[,]” N.T. 3/1/13

at 6, we conclude the detention was supported by the requisite reasonable

suspicion.

      “To meet the standard of reasonable suspicion, the officer must point

to specific and articulable facts which, together with the rational inferences

therefrom, reasonably warrant the intrusion.” Commonwealth v. Smith,


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904 A.2d 30, 35 (Pa. Super. 2006) (quotation marks and quotation

omitted). In addition, “we must look to the totality of the circumstances to

determine whether the officer had reasonable suspicion that criminal

activity was afoot.” Id. at 35-36 (quotation marks and quotation omitted).

      Among the factors to be considered in establishing a basis for
      reasonable suspicion are tips, the reliability of the informants,
      time, location, and suspicious activity, including flight.
            This standard is very narrow, however, in that it requires a
      particularized and objective basis for suspecting the particular
      person stopped of criminal activity.

Commonwealth v. Ayala, 791 A.2d 1202, 1208-09 (Pa. Super. 2002)

(quotations, quotation marks, and emphasis omitted).

      Initially, we note the trial court found credible Officer Ziegler’s

testimony that he received a dispatch “for a male in the area of Wood

Street that was threatening a female with a firearm.”     N.T. 3/1/13 at 3.

See Trial Court Opinion filed 2/27/15 at 7. Therefore, although Appellant

attempted to discredit Officer Ziegler’s testimony with the 911 call sheet,

which suggested a male was sending threatening text messages to a

female, under our standard of review, we are bound by the trial court’s

credibility determination with regard thereto.   See Clemens, supra.

      Furthermore, contrary to Appellant’s argument, Officer Ziegler did not

detain Appellant as the suspect merely because he was “a male Hispanic.”

Appellant’s Brief at 7.    Rather, as the record reveals, Officer Ziegler

testified that, in addition to the sex and race of the suspect, he was

provided with a description of the suspect’s clothing, including the fact the

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suspect was “wearing a black shirt and a black hat[,]” N.T. 3/1/13 at 4, as

well as the suspect’s location of “Wood Street.”      Id. at 4.   Additionally,

upon arriving at the location in his marked police cruiser within ten or

fifteen seconds of receiving the dispatch, a man on a bicycle, with whom

Officer Ziegler was familiar, pointed at Appellant and said, “He’s right there,

he’s right there.”   Id. at 29.   The officer then observed Appellant, who

matched the description given to him, walking down the middle of the road

in the dark.   It was at this point that Officer Ziegler stopped his cruiser,

exited it, and ordered Appellant to “come towards [the] car, put his hands

on the hood.” Id. at 6.

      Based on the totality of the circumstances, we conclude the record

supports the conclusion that Officer Ziegler had the requisite reasonable

suspicion to conduct an investigatory detention of Appellant.             See

Commonwealth v. Walls, 53 A.3d 889 (Pa. Super. 2012) (holding police

officer had reasonable suspicion that criminality was afoot to justify

detention of the defendant; officer heard a radio broadcast describing an

individual with a gun, officer observed the defendant one-half block away

from the location mentioned on the radio, the defendant matched the




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description of the suspect, and the defendant fled after seeing officer).

Thus, we find no relief is due on Appellant’s first claim.1

       Appellant’s next claim is the trial court erred in failing to grant his

motion to dismiss under Pa.R.Crim.P. 600.2              Specifically, Appellant

contends that, under Rule 600, the Commonwealth is required to

commence a defendant’s trial within 365 days of filing the criminal

complaint.     However, Appellant asserts that in the case sub judice the

Commonwealth filed the complaint on May 30, 2012, and he was not

brought to trial until August 4, 2014, well beyond the mechanical run date

of May 30, 2013.          Thus, he suggests the charges should have been

dismissed.

             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
____________________________________________


1
  We note Appellant has confined his suppression challenge to his initial
encounter with Officer Ziegler, and thus, we likewise limit our analysis
thereto.
2
  Effective July 1, 2013, the Supreme Court adopted a new Rule 600 that
reflects prevailing case law. See Pa.R.Crim.P. 600, Comment. However,
inasmuch as the Commonwealth filed the criminal complaint in this case
prior to the effective date of the revisions, the former rule guides our review.
See Commonwealth v. Brock, 61 A.3d 1015, 1016 n.2 (Pa. 2013).
Therefore, all references in this decision are to former Rule 600.




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     manifestly unreasonable, or the result of partiality, prejudice,
     bias or ill will, as shown by the evidence or the record, discretion
     is abused.

Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004)

(quotations, quotation marks, and citations 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.
            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) (quotation omitted).

     Rule 600 provides, in pertinent part:


     (A)(3) Trial in a court case in which a written complaint is filed
     against the defendant, when the defendant is at liberty on bail,
     shall commence no later than 365 days from the date on which
     the complaint is filed.
                                     ***
     (B) 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.

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      (C) In determining the period for commencement of trial, there
      shall be excluded therefrom:
                                      ***
          (3) such period of delay at any stage of the proceedings as
      results from:
             (a) the unavailability of the defendant or the defendant's
      attorney;
             (b) any continuance granted at the request of the
      defendant or the defendant's attorney.

Pa.R.Crim.P. (A)(3), (B), (C)(3)(a), (b).

      Here, in analyzing the instant claim, the trial court relevantly stated

the following:

              First, . . . we start with the mechanical date. Here, the
      complaint was filed on May 30, 2012. Pursuant to the Rule, the
      trial in the case was to commence within 365 days from the date
      on which the complaint was filed, or on May 30, 2013.
              The next determination is whether any excludable time
      exists[.] [Rule 600] allows the [c]ourt to adjust the date for
      delay caused by the defendant. The record in this case reflects
      that there was delay caused by [Appellant] on multiple
      occasions:
              July 3, 2012-July 18, 2012-request for continuance by
      [Appellant] (15 days)
              July 18, 2012-July 25, 2012-request for continuance by
      [Appellant] (7 days)
              July 25, 2012-August 29, 2012-request for continuance
      by [Appellant] (35 days)
              December 18, 2012-March 11, 2013-request for
      continuance by [Appellant] (83 days)
              March 11, 2013-June 3, 2013-request for continuance
      by [Appellant] (84 days)
              June 3, 2013-July 8, 2013-request for continuance by
      [Appellant] (35 days)
              July 8, 2013-October 21, 2013-request for continuance
      by [Appellant] (105 days)
              October 21, 2013-March 4, 2014-request                 for
      continuance by [Appellant] (134 days)
              March 4, 2014-June 23, 2014-request for continuance
      by [Appellant] (111 days)


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             June 23, 2014-August 4, 2014-request for continuance
       by [Appellant] (42 days)
             TOTAL NUMBER OF DAYS                 651
             In reviewing the record and analyzing the entire
       procedural history[,] . . . this court finds that the adjusted run
       date is calculated by adding the above delay to the mechanical
       run date for an adjusted run date of March 12, 2015. (Calculated
       by adding 651 days to the mechanical run date of May 30,
       2013). Trial commenced on August 4, 2014, well within the
       adjusted run date[.]

Trial Court Opinion filed 2/27/15 at 5-6 (bold added).

       As the trial court determined, application of Rule 600 to the instant

case was straightforward. We find no error in the trial court’s analysis and,

therefore, we conclude the trial court did not abuse its discretion in denying

Appellant’s motion to dismiss under Rule 600.        See Commonwealth v.

Ramos, 936 A.2d at 1103 (“We add the amount of excludable time, if any,

to the mechanical run date to arrive at an adjusted run date.”) (citation

omitted)).3




____________________________________________


3
  We note that, in a single paragraph, Appellant summarily contends the trial
court erred in denying his Rule 600 motion to dismiss without holding an
evidentiary hearing. Appellant’s Brief at 13.      However, without further
development, we find this specific issue to be waived. See Commonwealth
v. Williams, 732 A.2d 1167, 1175 (Pa. 1999) (noting that relief is
unavailable based upon undeveloped claims for which insufficient argument
is presented on appeal).



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     For all of the foregoing reasons, we affirm.

     Affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/28/2016




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