J-S65021-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 IN THE SUPERIOR COURT
                                                    OF PENNSYLVANIA
                             Appellee

                        v.

    JOSEPH JACKSON

                             Appellant              No. 596 MDA 2018


             Appeal from the Judgment of Sentence March 26, 2018
                 In the Court of Common Pleas of York County
               Criminal Division at No: CP-67-CR-0004876-2016


BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.:                       FILED JANUARY 09, 2019

       Appellant, Joseph Jackson, appeals from the judgment of sentence

imposed on March 26, 2018 in the Court of Common Pleas of York County.

Appellant contends the trial court erred in calculating excludable time under

Pa.R.Crim.P. 600(C)1 and, therefore, erred in denying his motion to dismiss


____________________________________________


1 Rule 600(A) requires that a defendant be brought to trial within 365 days
from the date on which the complaint is filed. Rule 600(C) provides, in
relevant part,

       (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) and (C)(1).
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charges of possession with intent to deliver, 35 P.S. § 780-113. Upon review,

we affirm.

      Appellant’s trial was scheduled for January 9, 2018.         Prior to jury

selection, Appellant’s counsel filed a Rule 600 motion to dismiss. Testimony

was taken from the affiant, Officer Michelle Miller, a York Police Officer who

also works for the York County Drug Task Force. Officer Miller explained that

Appellant was arrested on January 6, 2016 but charges were not immediately

filed because Appellant initially agreed to cooperate with the Drug Task Force.

Notes of Testimony (“N.T.”), 1/9/18, at 10-11. Charges were filed on March

17, 2016 but Appellant was not located and apprehended until July 7, 2016.

Id. at 11-14. While other delays in bringing Appellant to trial were attributable

to Appellant and are not challenged on appeal, Appellant is challenging the

exclusion of the period from March 17, 2016 until July 7, 2016 (112 days). If

that 112-day period were included in the Rule 600 calculations, Appellant

would be entitled to have the charges dismissed.

      After hearing Officer Miller’s testimony and argument of counsel, the

trial court determined the Commonwealth acted with due diligence in

attempting to locate Appellant and bring him to trial. Therefore, the court

denied Appellant’s motion to dismiss. The case proceeded to trial and the jury

returned a guilty verdict.    On March 26, 2018, the trial court sentenced

Appellant to a term of three to six years in a state correctional institution,




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consecutive to a sentence imposed in a separate case. This timely appeal

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents one issue for our consideration:

      I.      Whether the honorable court erred in denying Appellant’s
              motion to dismiss pursuant to Rule 600 of the Pennsylvania
              Rules of Criminal Procedure.

Appellant’s Brief at 4.

      In Commonwealth v. Bradford, 46 A.3d 693 (Pa. 2012), our Supreme

Court explained:

      When reviewing a trial court’s decision in a Rule 600 case, an
      appellate court will reverse only if the trial court abused its
      discretion. See Commonwealth v. Selenski, 606 Pa. 51, 994
      A.2d 1083, 1087 (2010). “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
      . . . discretion is abused.” Id. (internal citation omitted). Our
      scope of review is limited to the record evidence from the Rule
      600 hearing and the findings of the lower court, viewed in the light
      most favorable to the prevailing party. See id.

Id. at 700. Further, “[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.”

Commonwealth v. Sloan, 67 A.3d 1249, 1252 (Pa. Super. 2013) (quoting

Bradford, 46 A.3d at 701-02).

      In its order denying Appellant’s motion to dismiss, the trial court made

the following observations:

      We have taken th[e] testimony this afternoon from Officer Miller
      who indicated [Appellant] was initially arrested on the date of the

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      incident, January 6, 2016, that charges were not immediately filed
      because [Appellant] was going to cooperate with the Drug Task
      Force. When that did not occur, charges were filed on March 17,
      2016.

      A warrant for his arrest was filed on the same date. He was
      entered into the NCIC database system and additionally [O]fficer
      Miller indicated that she tried to contact [Appellant] via the cell
      phone number that he had provided, that there were two to three
      attempts to contact him via that cell phone number and that she
      further went to his last known address on Madison Avenue to no
      avail. She was not aware of any employment [Appellant] was
      engaged in nor of any local relatives to contact him. She [] was
      notified at the time [Appellant] was apprehended on July 7 th,
      2016.

N.T., 1/9/18, at 24-25. In its Rule 1925(a) opinion, the trial court recounted

Officer Miller’s testimony as well as the trial court’s conclusion that the efforts

made by the police were reasonable under the circumstances, warranting

exclusion of the 112 days. Trial Court Rule 1925(a) Opinion, 6/14/18, at 6.

The court explained it “cannot make a finding that the Commonwealth failed

to exercise due diligence or make reasonable efforts to bring the case to trial

so as to justify the dismissal of charges.” Id.

      Appellant argues that “the authorities did not exercise due diligence in

trying to locate the Appellant once the complaint was filed and the warrant

issued.” Appellant’s Brief at 10. In support of that contention, Appellant cites

the testimony elicited in the course of cross-examining Officer Miller.

Specifically, Appellant notes that Officer Miller “did not investigate places of

employment,” “did not search for relatives,” “did not question his landlord,”

“did not contact the [confidential informant] or anyone else who may have


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known of his whereabouts,” and “did not check any PennDOT records.” Id.

(quoting N.T., 1/9/18, at 14-17).

      Countering      Appellant’s   argument,   the    Commonwealth         cites

Commonwealth v. Hinton, 409 A.2d 54 (Pa. Super. 1979), in which this

Court determined:

      [T]he 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 [by] what was not done. The standard of
      due diligence demands only reasonable efforts.

Id. at 57-58 (emphasis in original). The Commonwealth contends Appellant

gives mere lip service to the due diligence standard, focusing on what Officer

Miller “did not do, rather than arguing that what she did do was in some way

insufficient.”   Commonwealth’s Brief, at 10.         As the Commonwealth

recognizes, Officer Miller obtained a warrant for Appellant’s arrest when the

charges were filed. She entered the warrant in the NCIC database so that

authorities would be notified of an outstanding warrant for Appellant’s arrest

in the event he were to have future police contact in Pennsylvania or

surrounding states.    She authorized extradition.    She attempted to locate

Appellant at his residence and attempted to reach him on two or three

occasions using his last known cell phone number. Commonwealth Brief at

10.   See also N.T., 1/9/18, at 12-14.      She did not contact an employer

because Appellant indicated he was not employed.         She did not contact

relatives because she was not aware of any. Id. at 14.

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      As our Supreme Court has explained:

      It is not the function of our courts to second-guess the methods
      used by police to locate accused persons. The analysis to be
      employed is whether, considering the information available to the
      police, they have acted with diligence in attempting to locate the
      accused.     Deference must be afforded the police officer’s
      judgment as to which avenues of approach will be fruitful.

Commonwealth v. Mitchell, 372 A.2d 826, 832 (Pa. 1977). “[T]he efforts

need only be reasonable; lack of due diligence should not be found simply

because other options were available or, in hindsight, would have been more

productive.” Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa. Super.

1991), appeal denied, 606 A.2d 901 (Pa. 1992).

      Here, after considering the efforts undertaken by Officer Miller, the trial

court concluded the court “cannot make a finding that the Commonwealth

failed to exercise due diligence or make reasonable efforts to bring the case

to trial so as to justify the dismissal of charges.” Trial Court Rule 1925(a)

Opinion, 6/14/18, at 6. Viewing the evidence of record from the Rule 600

hearing and the findings of the trial court in the light most favorable to the

Commonwealth as the prevailing party, we find no abuse of discretion in the

trial court’s ruling.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/9/2019




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