J-S51021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

RASHEEM D. DOWDY,

                            Appellant                 No. 1814 EDA 2015


             Appeal from the Judgment of Sentence May 12, 2015
              In the Court of Common Pleas of Delaware County
             Criminal Division at No(s): CP-23-CR-0000160-2014


BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                            FILED MARCH 29, 2018

       Appellant, Rasheem D. Dowdy, appeals from the judgment of sentence

entered following his convictions of attempted homicide, robbery, robbery of

a motor vehicle, aggravated assault, and carrying firearms without a

license.1 We affirm.

       The trial court presented the following detailed account of the factual

and procedural history of this case:

             On Sunday January 22, 2012[,] at approximately 5:06 pm
       Ridley Township Police responded to a call for a gunshot victim
       at the Church’s Chicken Restaurant located at 1936 West

____________________________________________


*   Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 901 and 2502, 3701(a)(1), 3702(a)(1), 2702, and 6106,
respectively.
J-S51021-17


     McDade Boulevard in the Woodlyn Shopping Center in Woodlyn,
     Delaware County, Pennsylvania. (N.T. 8/14/2014, page 19).

           The male victim, Mark L. Haas, was found bleeding on the
     floor with a gunshot wound to the chest. (N.T. 8/14/2014, page
     19). He reported that he had arranged to sell twenty (20)
     juvenile ball python snakes for twelve thousand six hundred
     dollars ($12,600.00) to a man known to him as Kevin Walmberg
     with a cell phone number (404)621-[****].

           After receiving a confirmatory message indicating Mr.
     Walmberg would be arriving at the pre-arranged location in 15
     minutes, Mr. Haas left his vehicle, a black Toyota Rav 4 SUV
     vehicle, and entered the Church’s Chicken Restaurant.

           On returning to his vehicle, Mr. Haas heard a voice from
     behind say “throw down the keys” and Mr. Haas observed a
     black male pointing a gun at him who ordered him out of the
     car, [to] throw down his keys and turn over his cell phone and
     threatened to kill him.

           Mr. Haas complied and left the driver’s seat of his vehicle
     along with his keys, his cell phone and snakes. As he then ran
     around to the passenger side of the vehicle, the black male
     turned and shot at him from the driver’s seat striking Mr. Haas in
     the chest and causing him to fall. The black male drove away in
     the vehicle containing the twenty (20) juvenile ball python
     snakes and Mr. Haas’ cell phone.

           Shortly thereafter, the police received a report of a
     reckless driver on Eastbound McDade Boulevard fleeing along
     Edgewood Avenue. (N.T. 8/14/2014, page 19).

          The police discovered Haas’ SUV abandoned on Edgewood
     Avenue with heavy front-end damage.

            The police established a perimeter and deployed a K-9 unit
     to follow the fresh footprints in the snow from the abandoned
     SUV to the nearby wooded area.

           While following the tracks in the snow the police first
     discovered a 9 mm Beretta handgun. The police also found a
     “Black Label” jacket sized XL with a Smith and Wesson 66 model


                                   -2-
J-S51021-17


     .357 Magnum revolver in the pocket. A scarf was also recovered
     from the jacket. (N.T. 8/14/2014, page 20).

           The police processed the scene including hair samples from
     the interior of the SUV. A check on the Beretta handgun
     indicated it had been reported stolen in 2005. Police were able
     to match the bullet retrieved from the body of the victim, Mr.
     Haas, as being fired from the 9 mm Beretta recovered from the
     woods.

           Detective Sargent William J. Henderson, Jr., a 27 year
     veteran of the Ridley Township Police Department, was the lead
     investigator assigned to the case. (N.T. 8/14/2014, page 16-
     17).

           Police investigation connected [Appellant], to the cell
     phone number used to arrange the purchase of the snakes
     through an alias “Jermaine Harper” known to be used by
     [Appellant].

            Based on the suspect’s information, Detective Henderson
     developed a photo array line-up to determine if the victim would
     positively identify [Appellant] as his assailant. (N.T. 8/14/2014,
     page 24-25).

           On February 28, 2012[,] the victim viewed the photo array
     line-up and immediately identified [Appellant] as the man who
     shot him from an eight (8) person photo array.            (N.T.
     8/14/2014, page 33).

           Once the Appellant was positively identified, Detective
     Henderson put the Appellant’s information into the NCIC
     database in an effort to locate the Appellant. He learned the
     Appellant was incarcerated in New York. (N.T. 8/14/2014, page
     35).

          Based on the results of the search, Detective Henderson
     prepared an affidavit of probable cause to seek a New York
     warrant to obtain a DNA sample from the Appellant. (N.T.
     8/14/2014, pages 35-36).

           Once the affidavit of probable cause was signed by a
     Magisterial District Judge in Pennsylvania it was forwarded to the
     King’s County, New York District Attorney’s office and

                                   -3-
J-S51021-17


     arrangements were made for Ridley Township Detectives and an
     FBI Special Agent to travel to King’s County New York on March
     6, 2012[,] and appear before a Judge in the King’s County New
     York Supreme Court to obtain the search warrant for the DNA
     sample. (N.T. 8/14/2014, pages 35-36).

           A Detective from King’s County New York along with an
     assistant district attorney accompanied the Ridley Township
     Detectives and FBI agent to a hearing before the New York
     Supreme Court Judge who listened to the testimony in support
     of the search warrant and thereafter issued the search warrant
     for a sample of the Appellant’s DNA. (N.T. 8/14/2014, pages
     38-40).

           None of the New York officials or law enforcement
     personnel indicated that either notice to the Appellant or a
     hearing at which the Appellant could challenge probable cause
     was a prerequisite to obtaining the search warrant or appearing
     before the Judge for a search warrant to collect the DNA sample.
     (N.T. 8/14/2014, pages 40).           The detectives were then
     transported to the correctional facility to meet with the Appellant
     and collect a sample of his DNA. (N.T. 8/14/2014, pages 41-
     42).

           The sample was collected with buccal swab which
     Detective Henderson placed into the Appellant’s mouth and
     brushed back and forth seven (7) times on the side of his cheek.
     It was then packaged into an evidence bag and brought back to
     Pennsylvania. (N.T. 8/14/2014 page 42).

           According to Detective Henderson the search warrant
     expressly permitted him to collect the DNA sample from the
     Appellant. (N.T. 8/14/2014, page 54).

           Detective Henderson testified that since it was Ridley
     Township’s case that they brought the evidence collection kit and
     it was in the best interest for a Ridley Township Detective to
     obtain the sample not a New York Detective due to chain of
     custody issues. (N.T. 8/14/2014, page 84).

          As of the time the sample was collected there were no
     charges filed against the Appellant [in Pennsylvania]. (N.T.
     8/14/2014, pages 45-46).


                                    -4-
J-S51021-17


           The charges in the Ridley Township case were actually filed
     and approved by a Magisterial District Judge [on] April 18, 2012.
     (N.T. 8/14/2014, page 46). As of the time of filing of the
     charges on April 18, 2012[,] Detective Henderson received
     confirmation there was a potential match on the Appellant’s
     DNA. (N.T. 8/14/2014, page 46).

          DNA swabs from the Appellant, the hairs from the vehicle,
     the DNA on the jacket, Beretta, Smith and Wesson, and scarf all
     matched [Appellant].

           On April 18, 2012[,] a Ridley Township arrest warrant was
     issued for [Appellant] on charges of attempted criminal homicide
     and related offenses.

           On April 18, 2012[,] the extradition unit of the Delaware
     County District Attorney’s Office faxed the Ridley Township
     arrest warrant and list of charges to the New York State
     authorities housing the Appellant at the Brooklyn House of
     Detention.

           The criminal complaint against [Appellant] was filed April
     18, 2012.

            The clerk from the Extradition Unit of the Delaware County
     District Attorney’s Office, Teresa Robins, was informed by
     authorities in the State of New York that [Appellant] had pending
     local charges. (N.T. 6/25/15 p. 15, 1-6).

            The Chief of the Extradition Unit of the Delaware County
     District Attorney’s Office, Louis Stesis, Esquire, testified to his
     extensive experience in extradition and prisoner transfer matters
     and testified that the demanding jurisdiction cannot have
     custody of the prisoner where the prisoner has unresolved
     charges in the holding jurisdiction. (N.T. 7/15/14 p. 29, 1-5).

           The Commonwealth produced the September 24, 2013
     correspondence from the New York Governor’s Office to the
     attention of Miriam Fonseca of the Office of Special Litigation of
     the New York County District Attorney’s Office corroborating the
     testimony of Louis Stesis, Esquire pertaining to the transfer of
     custody of [Appellant] that “the accused is not to be surrendered
     to the agents of the demanding state on the Executive Warrant


                                    -5-
J-S51021-17


     and Agent Authorization if there are criminal charges pending
     against him in the State of New York.”

            The Commonwealth also offered the credible testimony of
     Teresa Robbins, the clerk of the extradition unit of the Delaware
     County District Attorney’s Office, who also testified in her
     experience that when local charges are pending that fugitives
     are not released to a requesting jurisdiction.        She further
     testified that New York State authorities advised her that they
     would notify her when the Appellant was available.           (N.T.
     6/25/14 p. 29, 11-19).

           On January 26, 2012[, Appellant] had been charged in the
     Supreme Court of New York, Kings County, indictment number
     581-12 with crimes against children including counts for [i]ncest
     in the first degree, criminal sexual act in the first degree, sexual
     abuse in the second degree, sexual misconduct and endangering
     the welfare of a child.

          On July 24, 2013[, Appellant] entered a guilty plea to the
     charge of endangering the welfare of a child in New York State.

           On July 30, 2013[,] New York State arrested [Appellant] as
     a fugitive and commenced extradition. (N.T. 6/25/14 p. 17, 21-
     25 & p. 18, 1-8). [Appellant refused to waive extradition.]

           Thereafter[,] on August 27, 2013[,] the extradition unit of
     the Delaware County, Pennsylvania District Attorney’s Office
     completed an application for Requisition to the Governor of the
     Commonwealth of Pennsylvania for a Governor’s Warrant for the
     arrest of [Appellant].      (N.T. 6/25/14 p.19, 14-21).       On
     September 10, 2013[,] the Governor of the Commonwealth of
     Pennsylvania issued a Requisition to the Governor of the State of
     New York for the arrest of [Appellant].

          On September 13, 2013[,] the Governor of the State of
     New York issued an arrest warrant for [Appellant]. [New York
     authorities served the warrant on December 9, 2013.]

          On December 9, 2013[,] the clerk of the extradition unit of
     the Delaware County District Attorney’s Office forwarded a pick-
     up memo to the Office of the Sheriff of Delaware County for
     [Appellant].


                                    -6-
J-S51021-17


              On December 19, 2013[, Appellant] was preliminarily
        arraigned on charges in Delaware County including: criminal
        attempt to commit criminal homicide, possession of a weapon,
        aggravated assault (2 counts), recklessly endangering another
        person, terroristic threats with intent to terrorize another,
        robbery (2 counts), robbery - threatens immediate serious bodily
        injury, robbery of a motor vehicle, theft by unlawful taking -
        movable property, receiving stolen property (2 counts),
        unauthorized use of a motor vehicle, and firearms not to be
        carried without a license.

              The Appellant’s formal arraignment was scheduled for
        January 16, 2014. On June 19, 2014[,] the Appellant filed the
        instant motion to dismiss pursuant to Pa.R.Crim.P. Rule 600.
        The hearing on [Appellant’s] Rule 600 Motion to Dismiss was
        conducted June 25, 2014[,] and continued [in order] to receive
        additional testimony on July 15, 2014. [Appellant’s] Jury Trial
        proceeded on February 9, 2015[,] and concluded with a finding
        of guilt on [all charges on] February 12, 2015. [Appellant] was
        sentenced on May 12, 2015.

Trial Court Opinion, 12/22/16, at 1-9.

        Specifically, the trial court sentenced Appellant to serve an aggregate

term of incarceration of thirty-one to sixty-two years.      This timely appeal

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

1925.

        Appellant presents the following issues for our review:

               Did the Trial Court err in denying [Appellant’s] Motion to
        Dismiss the charges pursuant to Pennsylvania Rule of Criminal
        Procedure 600 for the Commonwealth’s failure to bring him to
        trial within 365 days of the filing of these charges?

              Did the Trial Court err in denying [Appellant’s] Motion to
        Suppress DNA evidence which was obtained in violation of his
        statutory, common law and constitutional rights emanating from
        the laws of the United States, New York and Pennsylvania?

Appellant’s Brief at 5.

                                      -7-
J-S51021-17


       Appellant first argues that the trial court erred in denying his pretrial

motion filed pursuant to Pa.R.Crim.P. 600 when it refused to dismiss the

charges due to the Commonwealth’s failure to bring Appellant to trial within

365 days of the filing of the criminal complaint. Appellant’s Brief at 13-20.

Basically, Appellant contends that the Commonwealth failed to prove that it

exercised due diligence in apprehending Appellant through the extradition

process to bring him to trial in a speedy manner.2

       Our review of a claim under Rule 600 is guided by the following

principles:

             [O]ur 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.


____________________________________________


2  In support of his Rule 600 claim, Appellant only argues that the
Commonwealth failed to timely extradite him from New York. For the sake
of completeness, we note that any additional delay was caused, in large
part, by Appellant requesting a continuance and waiving Rule 600 on April
21, 2014 (the original trial date), and then again requesting a continuance
and waiving Rule 600 on May 19, 2014. Appellant subsequently filed an
omnibus pretrial motion seeking suppression of evidence on May 30, 2014,
as well as a motion to dismiss under Rule 600 on June 19, 2014. After
conducting hearings on both motions, the trial court finally resolved the
motions on September 15, 2014. The time between April 21, 2014 and
September 15, 2014 amounts to 147 days.



                                           -8-
J-S51021-17


            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.
     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. Plowden, 157 A.3d 933, 936 (Pa. Super. 2017) (en

banc) (quoting Commonwealth v. Watson, 140 A.3d 696, 697-698 (Pa.

Super. 2016)).

     As a general rule, the Commonwealth is required to bring a defendant

to trial within 365 days of the date the complaint is filed.   The version of




                                    -9-
J-S51021-17


Rule 600 in effect at the time the criminal complaint against Appellant was

filed3 stated, in relevant part, as follows:

       Rule 600. Prompt Trial

                                          ***

       (A)(2) Trial in a court case in which a written complaint is filed
       against the defendant, when the defendant is incarcerated on
       that case, shall commence no later than 180 days from the date
       on which the complaint is filed.

       (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.

       (C) In determining the period for commencement of trial, there
       shall be excluded therefrom:

              (1) the period of time between the filing of the
              written complaint and the defendant’s arrest,
              provided that the defendant could not be
              apprehended because his or her whereabouts were
              unknown and could not be determined by due
              diligence;

____________________________________________


3  We note that a new version of Rule 600 was adopted, effective July 1,
2013, “to reorganize and clarify the provisions of the rule in view of the long
line of cases that have construed the rule.”          Pa.R.Crim.P. 600 cmt.
However, because the criminal complaint in this case was filed on April 18,
2012, prior to the effective date of the new rule, we will apply the former
version of Rule 600. The amendments to Rule 600 do not affect the result in
this case.



                                          - 10 -
J-S51021-17


                                      ***

            (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. 600.

      In addition, the comment to Rule 600 provided, in relevant part, as

follows:

            Under paragraph (C)(3)(a), 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; . . . or during
      which the defendant was absent under compulsory
      process requiring his or her appearance elsewhere in
      connection with other judicial proceedings.

Pa.R.Crim.P. 600 cmt (emphases added).

      Regarding the calculation of time for the commencement of a speedy

trial, we are mindful of the following:

      The mechanical run date is the date by which the trial must
      commence under Rule 600. It is calculated by adding 365 days
      (the time for commencing trial under Rule 600) to the date on
      which the criminal complaint is filed. The mechanical run date
      can be modified or extended by adding to the date any periods
      of time in which delay is caused by the defendant. Once the
      mechanical run date is modified accordingly, it then becomes an
      adjusted run date.

Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003).

                                      - 11 -
J-S51021-17


      We have long stated the following with regard to a defendant’s

unavailability for trial:

      “It is generally held that Rule [600] is tolled where the
      Commonwealth shows, by a preponderance of the evidence, that
      it has acted with due diligence in seeking extradition to bring the
      defendant to trial. … The matters of availability and due
      diligence must be judged by what was done by the authorities
      rather than by what was not done.”           Commonwealth v.
      DeMarco, 481 A.2d 632, 636 (Pa. Super. 1984) (internal
      citations omitted) (emphasis in original). Under Rule 600(C)(1),
      time between the filing of the complaint and a defendant’s arrest
      may be excluded from calculation of the trial commencement
      period, provided the defendant could not be apprehended
      because his whereabouts were unknown and could not be
      determined by due diligence. Commonwealth v. Ingram, 591
      A.2d 734, 737 (Pa. Super. 1991), appeal denied, 530 Pa. 631,
      606 A.2d 901 (1992). In addition, the Comment to Rule 600
      states a defendant is deemed unavailable during the time a
      responding jurisdiction delays or refuses to grant extradition.
      See Rule 600 Comment, supra.

Commonwealth v. McNear, 852 A.2d 401, 406 (Pa. Super. 2004).                In

addition, we have also explained the following:

      A criminal defendant who is incarcerated in another jurisdiction
      is unavailable within the meaning of Rule 600 if the
      Commonwealth demonstrates by a preponderance of the
      evidence that it exercised due diligence in attempting to procure
      the defendant’s return for trial. Due-diligence is a fact-specific
      concept that is 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.

McNear, 852 A.2d at 404 (citations and quotation marks omitted).

      Our review of the record reflects that the criminal complaint in this

matter was filed on April 18, 2012. Therefore, the mechanical run date for

the start of Appellant’s trial was April 18, 2013.    Appellant’s trial did not

                                    - 12 -
J-S51021-17


commence until February 9, 2015, which was 1,027 days after the filing of

the criminal complaint and 662 days after the expiration of the mechanical

run   date.     Nevertheless,    there   were    circumstances    beyond     the

Commonwealth’s control, i.e., Appellant’s unavailability due to compulsory

process requiring his appearance in New York in connection with other

judicial proceedings, which resulted in the delay of Appellant’s trial and

resulted in an adjusted run date.

      In addressing this issue, the trial court offered the following apt

analysis:

            The unrebutted credible evidence is that the State of New
      York would not transfer or otherwise release the Appellant to the
      custody of the Commonwealth of Pennsylvania until the
      Appellant’s New York State charges were resolved. Additionally,
      the evidence shows New York State did not raise the issue of
      extradition until after July 24, 2013[,] despite the diligence of
      the Delaware County Extradition Unit in notifying the authorities
      there on April 18, 2012 of [the] Commonwealth’s willingness to
      extradite the Appellant.

             Further, the credible testimony of the Delaware County
      District Attorney’s Extradition Unit was that the holding state will
      not release a prisoner until local charges are resolved. The
      Commonwealth is not required to perform repeated fruitless acts
      where New York State would not release the Appellant until the
      charges there were resolved. The Commonwealth has no control
      over the delay in raising extradition attributable to New York
      State authorities.

            The Commonwealth met the burden of showing by a
      preponderance of the evidence that due diligence was exercised
      in obtaining the Appellant’s presence for trial and that the
      circumstances occasioning the delay were beyond the control of
      the Commonwealth. Further, pursuant to Pa.R.Crim.P. Rule 600
      the Appellant was unavailable for trial between April 18, 2012
      and December 19, 2013[,] and these six hundred and eleven

                                     - 13 -
J-S51021-17


        days (611) are excludable delay not chargeable against the
        Commonwealth.

Trial Court Opinion, 12/22/16, at 16-17.           We agree with the trial court’s

conclusion.

        Our review of the record reflects that at the Rule 600 hearing, Teresa

Robins, the coordinator for the extradition unit of the Delaware County

District Attorney’s Office, testified regarding her efforts to secure Appellant’s

return from New York.          N.T., 6/25/14, at 5-51.      Ms. Robins’s testimony

indicated the timeline of the extradition process in this case, as well as her

general experience as the extradition coordinator.          The instant crime was

committed on January 22, 2012, and the criminal complaint was filed by the

Ridley Township Police Department on April 18, 2012. N.T., 6/25/14, at 10.

In the interim, on February 7, 2012, Appellant was arrested in New York and

was charged with committing a sexual crime in New York. Id. at 16. Ms.

Robins received from the Ridley Township Police a copy of the warrant for

Appellant’s arrest on April 19, 2012.          Id. at 11.   Also on that date, Ms.

Robins faxed to the Brookland House of Detention in New York a copy of the

warrant and a cover letter explaining that the Commonwealth was seeing

extradition of Appellant.4 Id. at 11-13. Ms. Robins testified that New York

____________________________________________


4   Along with other details, the letter contained the following language:

        Please be advised that we will extradite the above named
        individual. We ask you to notify our department of the
(Footnote Continued Next Page)


                                          - 14 -
J-S51021-17


authorities informed her that Appellant had pending charges and was not

available. Id. at 15. She also indicated that she was notified by the New

York authorities that she would be contacted when Appellant was available

to be transferred to Pennsylvania. Id.

      Specifically, the following transpired at the Rule 600 hearing regarding

Ms. Robins’s contact with New York authorities concerning Appellant:

      [COMMONWEALTH]:           Ms. Robins, were you given any
      information from the New York authorities in regards to
      [Appellant’s] status in New York?

      [MS. ROBINS]: Yes. [Appellant] had local charges in which [the
      Commonwealth] could not have him if -- while [Appellant] has
      matters in the other state.

      [COMMONWEALTH]: Okay. And were you further notified by
      the New York authorities that you would be contacted when he
      was available to be transferred to Pennsylvania?

      [MS. ROBINS]: Yes.

N.T., 6/25/14, at 15.

      Ms.    Robins    stated   that,   in     her   experience   as   the   extradition

coordinator, when a defendant has pending charges in another jurisdiction

the defendant is not available for extradition until the pending matter is




(Footnote Continued) _______________________

      willingness of the fugitive to waive extradition or the refusal to
      waive extradition and the need to make application for a
      Governor’s Warrant. Please lodge our request as a detainer.

N.T., 6/25/14, at 11.



                                         - 15 -
J-S51021-17


completed. Id. at 16. She further expressed that she has never received a

fugitive while local charges were pending in another jurisdiction.5 Id. at 17.

       Ms. Robins also testified as follows regarding the Commonwealth’s

decision not to proceed further with the extradition process:

       [COMMONWEALTH]: The time between April 19, 2012, to July
       25, 2013, why didn’t you proceed with extradition of the fugitive
       back to the Commonwealth of Pennsylvania?

       [MS. ROBINS]: I wait[ed] for the other, in this case New York,
       to notify me as [of] the status of the person that we want. They
       always notify me what they need or when the person’s available
       and then I do what I do what they instruct me to do so . . .

       [COMMONWEALTH]: Were you ever told during that time period
       that [Appellant] was available?

       [MS. ROBINS]: No.

       [COMMONWEALTH]: And why?

       [MS. ROBINS]: He had matters there in New York that he
       needed to take care of first.

N.T., 6/25/14, at 26-27.

       Ms.   Robins     offered   the    following   testimony   pertaining   to   her

understanding and contact with the New York authorities and Appellant’s

availability to be extradited to Delaware County:



____________________________________________


5Ms. Robins specifically testified that she was not able to seek extradition
pursuant to the Interstate Agreement on Detainer (“IAD”), 42 Pa.C.S. §
9101, et seq., because Appellant had not yet been sentenced for a crime in
New York. N.T., 6/25/14, at 30.



                                          - 16 -
J-S51021-17


      [COMMONWEALTH]:      What was your understanding as to
      whether or when [Appellant] would be available for extradition
      back to the Commonwealth of Pennsylvania?

      [MS. ROBINS]: I just -- and like during that time it was my
      understanding that [Appellant] was, you know, there to handle
      his matters and that I would be notified at the next step when,
      you know, he would be finished there. Like and I had no -- in
      that time period I have no notification and often it takes some
      time because continuances and things and periods...

      [COMMONWEALTH]: And it’s been your experience when there’s
      local charges pending are fugitives ever released to the
      Commonwealth of Pennsylvania, Delaware County?

      [MS. ROBINS]: No, not when they have a pending case.

      [COMMONWEALTH]: And you had conversations with the New
      York authorities that you would be notified when he was
      available. Correct?

      [MS. ROBINS]: Yes.

N.T., 6/25/14, at 29.

      In addition, the trial court heard testimony from Assistant District

Attorney Louis Stesis, who is the chief of the extradition unit of the Delaware

County District Attorney’s Office.     N.T., 7/15/14, at 6-55.      Mr. Stesis

indicated that the extradition process is initiated by his office with the

lodging of a detainer.   Id. at 12, 14-15.    Also, Mr. Stesis confirmed the

testimony of Ms. Robins that when a defendant has pending charges in

another jurisdiction, the defendant is not available for extradition until the

pending matter is completed. Id. at 28-29. This testimony that New York

authorities refused to extradite Appellant while New York charges were

pending was corroborated by a letter from Carol D. Swan, the New York

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J-S51021-17


State Governor’s Office extradition specialist, which was sent to the

commissioner of the New York City Police Department and was attached to

the Governor’s Warrant.          Letter, 9/24/13, at 1-2 (Commonwealth Exhibit-

5).6



____________________________________________


6   The text of the New York letter provides, in pertinent part, as follows:

        I have enclosed Governor Cuomo’s Executive Warrant & Agent
        authorization and supporting documents authorizing the
        surrender of [Appellant] to agents of the Commonwealth of
        Pennsylvania.

        On behalf of Governor Cuomo, please be advised [Appellant] is
        not to be surrendered to the agents of the demanding state on
        the Executive Warrant & Agent Authorization if there are criminal
        charges pending against him in the State of New York. In
        accordance with New York Criminal Procedure Law Section
        570.44, Governor Cuomo has the discretionary authority to hold
        the accused pursuant to the Executive Warrant & Agent
        Authorization pending completion of trial proceedings or his
        conviction and punishment in this state before surrendering him
        on the requisition of the executive authority of the demanding
        state.

        Furthermore, the accused is not to be surrendered to agents of
        the demanding state if the criminal charges pending against him
        result in his commitment to the New York State Department of
        Corrections and Community Supervision (DOCCS).            If the
        charges result in a DOCCS sentence, the fugitive matter should
        be dismissed and the Executive Warrant & Agent authorization
        and related documents returned to me at the above address.
        Agents of the demanding state may obtain custody of the
        accused pursuant to the Interstate Agreement on Detainers (CPI
        Section 580.20) or wait until he is discharged from his sentence
        and available for surrender.

(Footnote Continued Next Page)


                                          - 18 -
J-S51021-17


      The record also reflects that Ms. Robins explained that Appellant

ultimately pled guilty to charges in New York on July 24, 2013.                 N.T.,

6/25/14, at 17.      On July 25, 2013, the Pennsylvania warrant was again

faxed to New York authorities.         Id. at 18.     On July 30, 2013, New York

started the next level of the extradition process, but Appellant refused to

waive extradition on that date. Id. at 18-19. Ms. Robins testified that she

was informed on August 3, 2013, that Appellant had been transferred from

Brookland to Manhattan. Id. at 18. On August 27, 2013, Ms. Robins mailed

a request for a Governor’s Warrant to Harrisburg.                    Thereafter, the

Governor’s office in Harrisburg sent a Governor’s Warrant to New York

authorities on September 10, 2013.             Id. at 20.    The Governor’s Warrant

ultimately was served upon Appellant by New York authorities on December

9, 2013. Id. at 20-21. Also on December 9, 2013, upon being notified that

the Governor’s Warrant had been served upon Appellant, Ms. Robins issued

a memo to the Delaware County Sheriff’s Office with instructions on

retrieving Appellant in New York.          Id. at 21.       Thereafter, Appellant was

returned to Pennsylvania and proceeded to a preliminary arraignment on

December 19, 2013. Id. at 22.

(Footnote Continued) _______________________

      If the accused receives a local sentence, he should be
      surrendered upon satisfaction of sentence. If the charges result
      in an acquittal or dismissal, he may be surrendered at that time.

Letter, 9/24/13, at 1.



                                         - 19 -
J-S51021-17


      Thus, the record reflects that the Commonwealth acted with due

diligence in seeking Appellant’s return once he fled to New York, committed

a crime in that jurisdiction, was held in New York pending resolution of that

judicial process, and subsequently refused to waive extradition. Appellant’s

contrary claim that the Commonwealth did not act with due diligence in

securing Appellant’s return from New York is belied by the record. Hence,

his claim in this regard lacks merit.

      Appellant next argues that the trial court erred in denying his motion

to suppress evidence.     Appellant’s Brief at 21-25.   Specifically, Appellant

claims that the trial court should have suppressed his DNA evidence that was

obtained while Appellant was an inmate in New York. Appellant alleges that

his DNA was acquired in violation of New York law and therefore must be

suppressed. Id. at 22-24. Appellant presents the following argument in this

regard:

            Under New York law, the Due Process Clauses of the
      United States and New York Constitutions require that, absent
      exigent circumstances, a suspect must be provided with notice
      that an application to procure a DNA sample has been made and
      an opportunity to appear before a court to contest the People’s
      application. People v. Smith, 940 N.Y.S.2d 373, 377 (4th Dep’t
      2012); People v. Fomby, 956 N.Y.S.2d 633, 635 (3rd Dep’t
      2012); See U.S. Const. Amend. XIV; N.Y. Const. Art. I, Sec. 6.
      Furthermore, the New York Supreme Court has held that in
      cases where Due Process is not provided prior to the issuance of
      a search warrant for a DNA sample, any evidence resulting from
      the search must be suppressed. Id.

            The testimony of Officer Henderson indicates that
      acquiring the warrant did not comply with the law of the state of
      New York. [Appellant] was not provided with notice that an

                                        - 20 -
J-S51021-17


       application for a search warrant to procure a DNA sample was
       being made, nor was he provided any opportunity to contest the
       application in court prior to the warrant being issued or
       executed. (N.T. 8/14/15 at 50-51) [Appellant] was given no
       consent form to the DNA, nor was he informed of his right to
       refuse or his right to contest the warrant. (N.T. 8/14/15 at 56-
       57) Accordingly, the issuance and execution of the search
       warrant violated his rights under the Due Process Clauses of the
       New York and United States Constitutions and must be
       suppressed.

Id. at 22-23. Upon thorough review of the law and the facts of this case, we

determine that Pennsylvania law applies.

       With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

       Our standard of review in addressing a challenge to a trial
       court’s denial of a suppression motion is whether the factual
       findings are supported by the record and whether the legal
       conclusions drawn from those facts are correct. When reviewing
       the ruling of a suppression court, we must consider only the
       evidence of the prosecution and so much of the evidence of the
       defense as remains uncontradicted when read in the context of
       the record. . . . Where the record supports the findings of the
       suppression court, we are bound by those facts and may reverse
       only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). Moreover, we note that our scope of review from a suppression

ruling is limited to the evidentiary record that was created at the

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).7

____________________________________________


7 On October 30, 2013, our Supreme Court decided In re L.J., holding that
our scope of review from a suppression ruling is limited to the evidentiary
record that was created at the suppression hearing. L.J., 79 A.3d at 1087.
(Footnote Continued Next Page)


                                          - 21 -
J-S51021-17


      In addition, the decision to admit or exclude evidence is committed to

the trial court’s sound discretion, and its evidentiary rulings will only be

reversed upon a showing that it abused that discretion. Commonwealth v.

Laird, 988 A.2d 618, 636 (Pa. 2010).              Such a finding may not be made

“merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.”     Id. (quoting Commonwealth v. Sherwood, 982 A.2d 483,

495 (Pa. 2009)).

      Further, we are aware that Pa.R.Crim.P. 581, which addresses the

suppression of evidence, provides in relevant part as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).




(Footnote Continued) _______________________

Prior to L.J., this Court routinely held that, when reviewing a suppression
court’s ruling, our scope of review included “the evidence presented both at
the suppression hearing and at trial.” Commonwealth v. Charleston, 16
A.3d 505, 516 (Pa. Super. 2011) (quoting Commonwealth v. Chacko, 459
A.2d 311 (Pa. 1983)).        L.J. thus narrowed our scope of review of
suppression court rulings to the evidence presented at the suppression
hearing. In this case, Appellant’s suppression hearings were held after L.J.
was decided. Therefore, the rule announced in L.J. applies to the case at
bar. See L.J., 79 A.3d at 1089 (stating holding applies to “all litigation
commenced Commonwealth-wide after the filing of this decision”).



                                         - 22 -
J-S51021-17


      Concerning issues that present a conflict of law, our Supreme Court

has instructed as follows:

      The Pennsylvania approach to conflict of law issues varies
      depending upon whether the laws are procedural or substantive
      in nature.10 Pursuant to Commonwealth v. Sanchez, 552 Pa.
      570, 716 A.2d 1221 (1998), where a conflict of law arises
      regarding procedural matters, Pennsylvania will apply its
      procedural laws when it is the forum state. Id., at 1223.
      However, where a conflict exists regarding substantive laws,
      such as here, “Pennsylvania courts take a flexible approach
      which permits analysis of the policies and interests underlying
      the particular issue before the court.” Id. “This approach gives
      the state having the most interest in the question paramount
      control over the legal issues arising from a particular factual
      context, thereby allowing the forum to apply the policy of the
      jurisdiction most intimately concerned with the outcome.” Id.,
      at 1223–[12]24.

            10 “As a general rule, substantive law is that part of
            the law which creates, defines[,] and regulates
            rights, while procedural laws are those that address
            methods by which rights are enforced.” Payne v.
            Commonwealth Department of Corrections, 582
            Pa. 375, 871 A.2d 795, 801 (2005) (citations
            omitted).

Commonwealth v. Housman, 986 A.2d 822, 841-842 (Pa. 2009).

      A substantive right is defined as a right to equal enjoyment of

fundamental rights, privileges and immunities, as distinguished from a

procedural right. Sanchez, 716 A.2d at 1224. By contrast, procedural law

is that which prescribes the methods of enforcing rights or obtaining redress

for their invasion; this is distinguished from the substantive law which gives

or defines the right.    Id.   Because the issue before us involves the

constitutional protections regarding searches and seizures, this issue must


                                    - 23 -
J-S51021-17


be addressed under the principles of conflict between substantive laws,

which requires this Court to evaluate which state has the most interest in

the outcome.

      In Sanchez, a canine sniff of a package in California, which was sent

to a Pennsylvania resident, gave rise to the probable cause necessary for

issuance of a Pennsylvania search warrant. The canine sniff was legal under

California law but not Pennsylvania law. Sanchez, 716 A.2d at 1222-1223.

The Sanchez Court concluded that California possessed the greater interest

in the validity of a canine sniff and, because the sniff complied with

California law, it could be used to support probable cause in Pennsylvania.

Sanchez, 716 A.2d at 1224.        The Sanchez Court further held that no

Pennsylvania state interest would be advanced by analyzing the propriety of

the canine sniff under Pennsylvania law because the canine sniff did not

occur in Pennsylvania and no Pennsylvania state officer was involved in

the canine sniff. The Court in Sanchez concluded by holding “that if the

courts of a sister state determine that a canine sniff is not a search in that

state the propriety of a sniff initiated by that state’s officers and

conducted within that state’s boarders must be evaluated under the laws of

that state.” Sanchez, 716 A.2d at 1225 (emphasis added).

      In the case sub judice, we agree with the trial judge that Pennsylvania

law governs.   The victim of the robbery and shooting was a Pennsylvania

resident, Appellant is a Pennsylvania resident, the crime was initiated in a


                                    - 24 -
J-S51021-17


vehicle registered in the Commonwealth of Pennsylvania, and the crimes

occurred    in    Pennsylvania.       The      Ridley   Township   Police    Department

investigated the crimes in this matter.            The original affidavit of probable

cause requesting a search warrant for DNA evidence to be taken from

Appellant was signed by both a detective of Ridley Township Police

Department and a Pennsylvania Magisterial District Judge.               Appellant was

ultimately charged with violations of the Pennsylvania Crimes Code. Here,

as the trial court observes, Pennsylvania possessed the greater interest than

New York.        Trial Court Opinion, 12/22/16, at 23.        Consequently, the trial

court did not err in applying Pennsylvania law and refusing to suppress

Appellant’s DNA evidence due to alleged violations of New York law.

       In addition, Appellant contends that the DNA evidence should have

been suppressed under Pennsylvania law because the search was conducted

without a search warrant validly issued within Pennsylvania.                  Appellant’s

Brief at 24. Appellant asserts that a Pennsylvania police officer exceeded his

authority when he obtained a New York warrant to take Appellant’s DNA

sample while Appellant was an inmate in a New York criminal facility. 8 Id.

at 24-25. This allegation lacks merit.

       As we previously observed, Pennsylvania will apply its procedural laws

when it is the forum state.            Sanchez, 716 A.2d 1223.              The relevant
____________________________________________


8 Appellant does not allege that the search warrant was not supported by
probable cause.



                                          - 25 -
J-S51021-17


Pennsylvania Rule of Criminal Procedure provides as follows: “[a] search

warrant may be issued by any issuing authority within the judicial district

wherein is located either the person or place to be searched.” Pa.R.Crim.P.

200. This Rule authorizes Pennsylvania courts to issue a warrant where it

has   jurisdiction   over   “the   place   or   person   to   be   searched.”   Id.

Consequently, police officers are to obtain warrants from the jurisdiction

where the person, places, or effects to be searched or seized are located.

Moreover, in Pennsylvania proceedings, we have held that police may use

evidence seized pursuant to a warrant obtained through the cooperation

between Pennsylvania police and a neighboring jurisdiction.              See, e.g.,

Commonwealth v. Corbo, 440 A.2d 1213, 1215 (Pa. 1980) (reversing

order granting suppression of evidence resulting from a search of the

appellees’ place of business, where the Commonwealth secured the

Pennsylvania search warrant through affidavits supported by information

received from the New Jersey State Police). In addition, we observe that our

Supreme Court has long held that the requirement “that the officers serving

the warrant have territorial jurisdiction at the place of the search, is wrong.”

Commonwealth v. Mason, 490 A.2d 421, 427 (Pa. 1985). “[Pennsylvania]

Rule [of Criminal Procedure 204] provides, clearly and simply, that a search

warrant shall be served by a law enforcement officer. The comment to the

rule provides that ‘[n]o specific person need be designated in the warrant.

However, only a law enforcement officer can properly serve a search


                                       - 26 -
J-S51021-17


warrant.’” Id. (emphases in original). In addition, our Supreme court has

explained the following:

      [E]ven were we to agree [that Rule 204] required that a law
      enforcement officer having primary jurisdiction in the place
      where the search is to take place actually “participate” in the
      service of the warrant, we would not hesitate to find that
      requirement met in the instant case because of the presence of
      “jurisdictional police officers” . . . at [the place searched]. The
      distinction recognized by the Superior Court, between searches
      wherein “jurisdictional police” participate in the search
      “regardless of the degree of participation” and searches wherein
      “jurisdictional police” are “merely” present at the scene, is
      artificial; their presence is certainly sufficient to constitute
      “actual participation.”

Mason, 490 A.2d at 427. See also Commonwealth v. Kunkel, 408 A.2d

475, 476-477 (Pa. Super. 1978) (reversing order granting motion to

suppress where search warrant was not defective because police officers

were acting beyond the scope of their jurisdiction).

      In addressing Appellant’s concern, the trial court offered the following

discussion:

             The relevant Pennsylvania Rule of Criminal Procedure
      pertaining to issuance of a search warrant states: “a search
      warrant may be issued by any issuing authority within the
      judicial district wherein is located either the person or place to
      be searched.”      See Pa.R.Crim.P. 200.       The statute plainly
      authorizes Pennsylvania courts to issue a warrant where it [has]
      jurisdiction over “the place or person to be searched.” Id.
      Because the police officers must obtain warrants from the
      jurisdiction where the person, places, or affixed to be searched
      or seized or located. See Id.; [s]ee also Commonwealth v.
      Ryan, 400 A.2d 1264, 1268 (Pa. 1979).                 Just as in
      Commonwealth v. Corbo, 440 A.2d 1213, 1215 (Pa. 1980)[,]
      where it was held officers may use evidence seized pursuant to a
      warrant obtained through the cooperation among officers in
      Pennsylvania and New Jersey in Pennsylvania proceedings[,]

                                    - 27 -
J-S51021-17


     here, by analogy[,] officers of Pennsylvania may use evidence
     seized pursuant to a warrant obtained through cooperation
     among officers in New York.

           In this case, Ridley Township police worked with law
     enforcement outside of Pennsylvania because Appellant was
     incarcerated in New York at the time. The assistance of New
     York police was necessary to obtain and execute the search
     warrant. See Commonwealth v. Kunkel, 408 A.2d 475, 476-
     [4]77 (Pa. Super. 1978).

Trial Court Opinion, 12/22/16, at 20-21.

     Upon review of the certified record, we conclude that there was no

violation of Pennsylvania procedural law in the issuance and execution of the

search warrant to secure Appellant’s DNA.    Here, it is undisputed that the

Ridley Township police worked with officials outside of the Commonwealth

because Appellant was incarcerated on pending charges in the state of New

York. Commonwealth Exhibit #CS-4, 8/14/14, Affidavits of Probable Cause

dated 3/1/12 and 3/6/12. The assistance of New York police was necessary

in procuring and executing a valid New York search warrant, which was

where Appellant was incarcerated. Commonwealth Exhibit #CS-4, 8/14/14,

New York Search Warrant.     It is further undisputed that New York police

accompanied the Ridley Township police officer to execute the search

warrant and to secure the DNA sample. Accordingly, we are satisfied that

there was no violation of Pennsylvania procedural law and the results of

Appellant’s DNA testing were properly admitted under Pennsylvania law.

     Judgment of sentence affirmed.




                                   - 28 -
J-S51021-17




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/29/18




                          - 29 -
