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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
NATHANIEL WILLIAMS, JR.,                    :
                                            :
                          Appellant         :     No. 2045 MDA 2014

              Appeal from the Judgment of Sentence July 14, 2014
                 In the Court of Common Pleas of York County
               Criminal Division No(s).: CP-67-CR-0003801-2012

BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 21, 2015

        Appellant, Nathaniel Williams, Jr., appeals from the judgment of

sentence entered in the York County Court of Common Pleas following his

jury trial.   He argues the Commonwealth did not exercise due diligence in

attempting to locate him and therefore the trial court erred in denying his

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

        On May 18, 2011, Appellant was driving a car registered to his

girlfriend; he had two passengers. Trial Court Op., 3/12/15, at 2; N.T. Trial,

5/5/14, at 127. Pennsylvania State Troopers attempted to stop his vehicle

for various infractions, but Appellant “did not respond[,] continued fleeing”

and ultimately struck a parked vehicle. Trial Ct. Op. at 2. Appellant then

*
    Former Justice specially assigned to the Superior Court.
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fled the scene on foot. Id. A subsequent inventory search produced drugs

and other items.     Id.     A second search of the car, conducted after

Appellant’s girlfriend consented, produced mail with Appellant’s name on it,

photographs of Appellant, “a marijuana smoking cigar, and a video camera

and case.” Id. at 2-3. Two days later, on May 20th, he visited the home of

the woman whose car he hit during the chase. Id. at 3. He told her he was

the driver of the vehicle that hit her car, he would not pay for any damage,

and “that if she went to court she would be the only one there.” Id. The

woman knew Appellant “through prior contacts” and identified him in a

photo array. Id.; N.T. Trial at 142.

      On August 1, 2011, Pennsylvania State Police filed a complaint and the

trial court issued an arrest warrant. Both documents stated Appellant had

“no fixed address.” Appellant was not apprehended until April 4, 2012, on

unrelated charges.   This period of 247 days1 is the subject of the instant

appeal.   On March 27, 2013, Appellant filed a Rule 600 motion to dismiss

arguing, inter alia, the Commonwealth did not exercise due diligence in

locating him.   The trial court held a hearing on May 13th, and denied the

motion on January 9, 2014.

      Appellant’s trial began on May 5, 2014. On May 8th, the jury found




1
 While the trial court opinion states this period was 252 days, we calculate it
as 247 days. See Trial Ct. Op. at 3, 5.


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Appellant guilty of fleeing or attempting to elude a police officer,2 possession

of    a   controlled   substance,3   possession   of   drug   paraphernalia,4   and

victim/witness intimidation.5        The trial court separately found Appellant

guilty of possession of a small amount of marijuana 6 and multiple traffic

violations.7 On July 14, 2014, the trial court imposed a sentence of one and

a half to three years in state prison and $4,487.88 restitution for fleeing or

attempting to elude a police officer, a concurrent one to two years in state

prison for possession of a controlled substance, a concurrent thirty days’

probation for possession of a small amount of marijuana, a concurrent

twelve months’ probation for possession of drug paraphernalia, ninety days

in York County prison for reckless driving, and a consecutive one to two




2
    75 Pa.C.S. § 3733(a).
3
    35 P.S. § 780-113(a)(16).
4
    35 P.S. § 780-113(a)(32).
5
    18 Pa.C.S. § 4952(a)(3).
6
    35 P.S. § 780-113(a)(31)(i).
7
  The trial court found Appellant guilty of the following traffic violations:
violating traffic control signals, 75 Pa.C.S § 3112(a)(3)(i); disregarding
traffic lanes, 75 Pa.C.S. § 3309(1); failure to stop at a stop sign, 75 Pa.C.S.
§ 3323(b); failure to signal, 75 Pa.C.S. § 3334(a); driving a vehicle at an
unsafe speed, 75 Pa.C.S. § 3361; accidents involving damage to an
unattended vehicle or property, 75 Pa.C.S. § 3745(a); and reckless driving,
75 Pa.C.S. § 3763(a).



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years in state prison for victim/witness intimidation.8        N.T. Plea &

Sentencing, 7/14/14, at 22-23.

     On July 16, 2014, Appellant filed a timely post-sentence motion.9 The

trial court held a hearing on October 31, 2014, and that same day denied

the motion in part and granted it in part.10 On December 1, 2014, Appellant

filed his notice of appeal.   On the following day, the trial court ordered

Appellant to file a Pa.R.A.P. 1925(b) statement.        He was granted two

extensions of time to file his statement, and complied by filing one on

February 19, 2015.

     Appellant raises the following issue for review:

        Whether the trial court erred in denying Appellant’s Motion
        to Dismiss based on Rule 600 by finding that the
        Commonwealth exercised due diligence in attempting to
        locate and bring Appellant to trial?

Appellant’s Brief at 4. He argues the Commonwealth did not exercise due

diligence in trying to locate him where the “officer’s only efforts to locate

[him] over an eight month period are entering a warrant into the NCIC

database and, on two occasions, checking his name in the PACIC database.”

8
 At the same hearing, Appellant also pleaded guilty to and was sentenced
on the unrelated charges for which he was apprehended on April 4, 2012.
9
  Appellant filed a pro se post-sentence motion on July 25, 2014, but the
trial court did not take action on it. Trial Ct. Op. at 4.
10
   The trial court partially granted Appellant’s post-sentence motion by
amending his reckless driving sentence of ninety days in York County Prison
to “run concurrently with the other counts.” N.T. Post-Sentence Mot.,
10/31/14, at 6. The trial court denied the motion in all other respects. Id.


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Id. at 12. Appellant contends due diligence requires an officer to do more

than “enter [a defendant’s] name into databases, sit back, and wait.” Id. at

15.   Appellant contrasts the officer’s actions in this case to those in other

cases.   He concludes that because these “efforts . . . cannot be seen as

diligent, [ ] the trial court erred in denying his motion to dismiss.” Id. at 18.

We find no relief is due.

      Our standard and scope of review in analyzing a Rule 600 issue are

both well-settled:

            In evaluating Rule 600 issues, our standard of review of
         a trial court’s decision is whether the trial court abused its
         discretion. Judicial discretion requires action in conformity
         with law, upon facts and circumstances judicially before
         the court, after hearing and due consideration. An abuse
         of discretion is not merely an error of judgment, but if in
         reaching a conclusion the law is overridden or misapplied
         or the judgment exercised is manifestly unreasonable, or
         the result of partiality, prejudice, bias, or ill will, as shown
         by the evidence or the record, discretion is abused.

         The proper scope of review . . . is limited to the evidence
         on the record of the Rule 600 evidentiary hearing, and the
         findings of the trial court. An appellate court must view
         the facts in the light most favorable to the prevailing party.

Commonwealth v. Peterson, 19 A.3d 1131, 1134-35 (Pa. Super. 2011)

(citations omitted).

      Rule 600 reads, in pertinent part:

         (A) Commencement of Trial; Time for Trial

                                   *    *    *

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

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              (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(A)(2)(a), (C)(1).

        The Commonwealth has the burden of proving by a
        preponderance of the evidence that due diligence was
        employed by the Commonwealth in attempting to
        apprehend [a defendant]. In determining whether the
        police acted with due diligence, a balancing process must
        be employed where the court, using a common sense
        approach, examines the activities of the police and
        balances this against the interest of the accused in
        receiving a fair trial.    We have held that, where the
        Commonwealth exercises due diligence in attempting to
        locate a defendant prior to arrest, the period of elapsed
        time between the date of the filing of the complaint and
        the date of the arrest is excludable pursuant to [Rule
        110011]. Further, when this [C]ourt is reviewing the trial
        court’s ruling “that the Commonwealth has met its burden,
        we shall consider only the evidence presented by the
        Commonwealth and so much evidence as presented by the
        defense as, fairly read in the context of the record as a
        whole, remains uncontradicted.”


11
   We note “Rule 1100 was the predecessor to Rule 600.”       Peterson, 19
A.3d at 1136 n.5.


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Commonwealth v. Newman, 555 A.2d 151, 155 (Pa. Super. 1989)

(citations omitted).   “Due 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.”

Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010) (citations

omitted).

      Instantly, it is clear that the May 5, 2014 jury trial commenced after

the mechanical run date.12 The trial court opined:

            In the present case, the speedy trial issue comes down
         to the [247] day period between the filing of the criminal
         complaint and the day . . . Appellant was located and
         arrested. At the [Rule 600] hearing, defense counsel
         argued that the police should have talked to associates of .
         . . Appellant, checked prisons, or checked with adult
         probation. The defense further argued that . . . Appellant
         was not intentionally absconding from the law because he
         was found in York. The Commonwealth argued that the
         police did all that they could with the information known to
         them at the time. The police not only entered . . .
         Appellant’s arrest warrant in PaCIC and the national
         database, but also contacted his then-girlfriend in an
         attempt to locate him. . . . Appellant was found to have no
         fixed address, so in the Commonwealth’s opinion, the
         police had done all they could do.

            Looking at what the police did do in this case, we
         believe that the Commonwealth did exercise due diligence.
         We cannot think of anything else the police could have
         done, short of accidentally running into [Appellant], that
         would have increased their chances of finding [him] any
         sooner. It was the actions of the police, putting the
         warrant into the state and national database, which led to .

12
   “The mechanical run date is calculated by adding 365 days to the date the
criminal complaint is filed.” Peterson, 19 A.3d at 1137 n.6.


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           . . Appellant’s arrest in this case. Had officers not entered
           that information this may have been a case with a
           difference result.

Trial Ct. Op. at 5-6 (record citations omitted).

        As stated above, Appellant evaded state troopers in a vehicle chase,

fled the scene on foot, and was eventually apprehended on unrelated

charges. Trial Ct. Op. at 2. At the time of the incident, Appellant did not

have a fixed address. N.T. Rule 600 H’rg, 5/13/13, at 4-5. Police believed

he may be at his girlfriend’s home but “she was not there.” Id. at 4. Police

also entered Appellant’s name in both the PACIC and NCIC databases. Id.

at 5.     Ultimately, Appellant was apprehended while “staying at a Super 8

Motel.”    Id. at 4.   We hold the trial court did not abuse its discretion in

finding the Commonwealth “put forth a reasonable effort” in locating

Appellant.     Peterson, 19 A.3d at 1134-35; see Selenski, 994 A.2d at

1089. Thus, we conclude the trial court did not err in denying Appellant’s

motion to dismiss pursuant to Rule 600. See Newman, 555 A.2d at 155.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2015




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