J-S74043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SAMUEL GARCIA                              :
                                               :
                       Appellant               :   No. 2271 EDA 2017

         Appeal from the Judgment of Sentence Entered March 2, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0014282-2014


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

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MARCH 21, 2019

        Samuel Garcia appeals from his judgment of sentence imposed on his

convictions for attempted murder, aggravated assault, possession of an

instrument of crime (“PIC”), simple assault, and recklessly endangering

another person (“REAP”).1 Garcia challenges the discretionary aspects of his

sentence and maintains that the trial court erred in denying his Pa.R.Crim.P.

600 motion. We affirm.

        The trial court aptly summarized the facts of this case as follows:

        On October 9, 2014, at approximately 10:00 p.m., police officers
        responded to a call of a person screaming at the intersection of
        Arch Street and Farson Street in the City and County of
        Philadelphia. The arriving officers observed a silver Dodge Caliber
        and a male pointing towards the car. Upon approaching the car,
        officers saw blood on the driver’s side of the vehicle and an
        additional pool of blood on the sidewalk with what appeared to be
        human teeth. Officer Michael Fischbach, one of the first officers on
____________________________________________


1   18 Pa.C.S.A. §§ 901, 2502, 2702(a)(1), 907, 2701, and 2705, respectively.
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     the scene, approached the vehicle and observed the victim – later
     identified as V.B. – sitting in the driver’s seat of the vehicle and
     observed she had cuts, a swollen face and lacerations to her face,
     arms and hands. The officers on scene noted that V.B. did not
     appear completely cognizant, but [they] were able to gather
     information that the persons responsible for her attack lived with
     her. The officers recognized the one to two-inch slash marks on
     V.B. to be consistent with those inflicted by a knife. After getting
     the summary information from V.B.[,] the officers on scene called
     for an expedited response by paramedics, [and] the officers
     observed a knife in the interior of the Dodge Caliber.

     V.B. knew Samuel Garcia from a restaurant both mutually
     frequented. After some time, V.B. rented space in her home
     located at 5522 Ridgewood Street in Southwest Philadelphia to
     [Garcia]. [Garcia] consistently paid his rent on time for
     approximately 8 or 9 months while living with the victim; the only
     major point of contention between the two was [Garcia] would eat
     food purchased by V.B. and his failure to pay her back for the
     food.

     On October 9, 2014, the victim – V.B. – asked that [Garcia] move
     out of the home in which he had been renting space from V.B. for
     8 or 9 months. The victim wished for [Garcia] to move out due to
     the slovenly nature with which he kept space and for the continual
     taking of the victim’s food without permission. After the victim
     asked [Garcia] to move out of the home and to pay for the food
     he had taken, [Garcia] asked V.B. for a ride to his aunt’s house
     under the guise of collecting money from his aunt to give to the
     victim. The victim agreed to drive [Garcia] to his aunt’s house. At
     this time, the victim entered the driver’s seat of her vehicle,
     [Garcia] entered the front passenger seat of the vehicle and a
     second male entered the rear passenger seat of the vehicle. The
     three departed in the victim’s car and upon arriving at the home
     of [Garcia’s] aunt, they discovered that she was not home.
     [Garcia] then attempted to have V.B. drive to another location,
     but the victim refused. At that point, the male that was sitting in
     the backseat of the vehicle attempted to place something over the
     victim’s head while she was sitting in the driver’s seat. At the same
     time, [Garcia] took out a knife and began to stab at the victim.
     After repeatedly attempting to stab the victim with the knife, it
     broke in [Garcia’s] hand. This broken knife blade and handle were
     observed by responding officers on the passenger side of the
     vehicle where [Garcia] had been seated. V.B. used this

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      opportunity to attempt to make an escape from the vehicle, but
      [Garcia] continued to beat the victim inside the car. Through the
      beating, the victim was able to open the driver’s door of the
      vehicle at which time she fell out of the car and onto the ground.

      Officers from the Special Investigations Unit, Southwest
      Detectives, of the Philadelphia Police Department recovered video
      of the events that unfolded outside of the vehicle from a grocery
      store located at 50th Street and Arch Street. The video depicts
      [Garcia] and the other male exit the vehicle[,] then kick the victim
      on or about the head approximately 25-30 times. The resulting
      beating left a pool of blood near the vehicle with human teeth. The
      victim was transported by ambulance to the Hospital of the
      University of Pennsylvania. At the hospital, V.B. was treated for
      bleeding on the brain, right medial orbital wall fracture - a fracture
      to the bone in her face – and was also found to have swelling in
      around the eye; fractured tooth root, multiple knife lacerations,
      multiple absent teeth and a collection of blood resulting from the
      lacerations. Detective Connell attempted to make contact with the
      victim at the hospital for an interview, but due to her condition
      was unable to take such an interview. Detective Connell was able
      to meet with V.B. at Southwest Detectives on October 17, 2014,
      at which time the victim identified [Garcia] as one of her attackers
      and the man who slashed at her in the vehicle prior to the knife
      breaking.

Trial Court 1925(a) Opinion (“TCO”), filed Feb. 27, 2018, at 1-5 (citations to

record omitted).

      The Commonwealth filed a criminal complaint against Garcia on October

22, 2014. See Criminal Complaint, filed 10/22/14. Trial was scheduled for May

16, 2016. A week prior to trial the Commonwealth discovered that V.B. no

longer resided in Philadelphia and had relocated to Savannah, Georgia but was

unaware of her exact address. Upon notification of this, the Commonwealth




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filed a motion arguing that V.B. was unavailable under Pa.R.E. 804(a).2

Notably, when the Commonwealth filed its motion, it was still within 63 days

of the mechanical run date under Rule 600 of the case. The trial court declined

to find the witness unavailable stating:


       I think you need to cross your T’s and dot your I’s. I mean, just
       saying you don’t have a complainant to appear, you have to do
       some searches of – some more detailed search to show me that
       you can’t locate her at all or that you contact her and she finally
       says, I can’t do this, my brain is not working well, as she’s told
       you in the past. I think you need to do a little further investigation
       into where she may be before you can tell me she’s not available.
       For all we know, you may locate her and she may be willing to
       come up.
____________________________________________


2 (a) Criteria for Being Unavailable. A declarant is considered to be
unavailable as a witness if the declarant:

       (1) is exempted from testifying about the subject matter of the
       declarant's statement because the court rules that a privilege applies;

       (2) refuses to testify about the subject matter despite a court order to
       do so;

       (3) testifies to not remembering the subject matter, except as provided
       in Rule 803.1(4);

       (4) cannot be present or testify at the trial or hearing because of death
       or a then-existing infirmity, physical illness, or mental illness; or

       (5) is absent from the trial or hearing and the statement's proponent
       has not been able, by process or other reasonable means, to procure:

              (A)    the declarant's attendance, in the case of a hearsay
                     exception under Rule 804(b)(1) or (6); or

              (B) the declarant's attendance or testimony, in the case of a
              hearsay exception under Rule 804(b)(2), (3), or (4).

Pa.R.E. 804(a).

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N.T., Unavailability Motion Hearing, May 16, 2016, at 17. The trial court then

continued the case for 90 days, to give the Commonwealth an opportunity to

locate the victim. Id. at 18.

      Defense counsel filed a Rule 600 motion on July 26, 2016, requesting

dismissal. At a hearing, the Commonwealth stated that it had found V.B. and

that she was prepared to testify at trial. N.T., Rule 600 Motion, 8/25/16, at

12. The trial court concluded that the Commonwealth had been duly diligent

in bringing Garcia to trial and denied the motion. Id.

      The Commonwealth proceeded with trial on August 31, 2016 and

following a one-day bench trial, the court found Garcia guilty of the above-

listed offenses. At a sentencing hearing, the court heard from both parties and

considered the Pre-Sentence Investigation (“PSI”) report. It then imposed the

following sentence: 15 to 30 years’ incarceration for attempted murder which

was merged with the aggravated assault conviction and a consecutive term of

two and one-half to five years’ incarceration for PIC which was merged with

both the simple assault and REAP convictions. Garcia filed a post-sentence

motion that was denied by operation of law on July 12, 2017. This timely

appeal followed.

      On appeal, Garcia raises the following issues:

      1. Did not the lower court err in denying [Garcia’s] motion to
         dismiss under Pennsylvania Rule of Criminal Procedure 600(A)
         where the trial did not commence until well after the adjusted
         run date and the Commonwealth was not duly diligent in
         bringing the matter to trial because the Commonwealth failed

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          to investigate the whereabouts of an otherwise available
          complainant such that it needed a continuance?

      2. Was not the sentencing court’s imposition [of] a sentence of
         17½ to 35 years of incarceration unreasonable, manifestly
         excessive and an abuse of discretion where the court failed to
         conduct an individualized sentencing, did not properly consider
         the sentencing factors under 42 Pa.C.S.[A.] § 9721, ignored
         whether the sentence was the least stringent to protect the
         community, did not consider [Garcia’s] rehabilitative needs,
         and did not sufficiently place its reasons for its sentence on the
         record?

      3. Did not the lower court err and abuse its discretion and impose
         a manifestly excessive sentence in imposing a consecutive
         sentence of 2½ to 5 years of incarceration on the charge of
         possession of an instrument of crime where the sentence is five
         times longer than the aggravated range because the lower
         court failed to place sufficient reasons for its deviation on the
         record and failed to state on the record or otherwise
         acknowledge the sentencing guidelines?

Garcia’s Br. at 4 (trial court’s answers omitted).

RULE 600

      We review the denial of a motion to dismiss pursuant to Rule 600 for an

abuse of discretion. See Commonwealth v. Kearse, 890 A.2d 388, 391

(Pa.Super. 2005). “Our scope of review is limited to the evidence on the record

of the Rule 600 evidentiary hearing and the findings of the trial court. We

must view the facts in the light most favorable to the prevailing party.” Id.

(quoting Commonwealth v. Williams, 876 A.2d 1018, 1020 (Pa.Super.

2005)).

      Rule 600 provides that 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.” Pa.R.Crim.P. 600(A)(2)(a). Rule 600

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also provides when time should be excluded from the calculation of the

deadline. “Any delay in the commencement of trial that is not attributable to

the Commonwealth when the Commonwealth has exercised due diligence

must be excluded from the computation of time.” Pa.R.Crim.P. 600, cmt; see

also Pa.R.Crim.P. 600(C)(1).3 Ultimately, the inquiry “is whether the delay is

caused solely by the Commonwealth when the Commonwealth has failed to

exercise due diligence.” Pa.R.Crim.P. 600, cmt.

       The Commonwealth bears “the burden of demonstrating by a

preponderance       of   the    evidence       that   it   exercised   due   diligence.”

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). “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).

       The parties agree that 269 days are excludable; the only dispute is

whether the trial court properly excluded the time between May 16, 2016 and

the trial date. Garcia maintains that the time is not excludable because the

time between May 16th and the trial date was caused by the Commonwealth’s

delay in ensuring V.B.’s attendance on the original trial date. He maintains

____________________________________________


3 “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(C)(1).

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that “[t]he Commonwealth sat on its hands for nearly a year, and engaged in

the most minimal of effort to notify and secure the presence of its primary

witness.” Garcia’s Br. at 27. We disagree.

      First, it was not unreasonable to first contact V.B. one week before trial.

Viewing the facts in the light most favorable to the Commonwealth, V.B. had

appeared at prior court listings, indicated her willingness to testify, and had

not given the Commonwealth any indication at any time of her intention to

move away. As the trial court stated:

      [V.B.] . . . had made every effort to participate in the proceedings.
      [V.B.] testified at the preliminary hearing on December 22, 2014.
      Perhaps most tellingly, [V.B.] was subpoenaed to appear for the
      first trial date on October 16, 2015, and responded in the
      comments on the subpoena to “Please be patient. My brain don’t
      work the same.”

TCO at 9.

      Second, the Commonwealth exercised due diligence to bring Garcia to

trial. Detective Timothy Connell testified that a week before the May 16th trial

date, he went to V.B.’s last known address and learned that she had moved

to Savannah, Georgia. See N.T., 5/16/16 at 8. Once he was notified of this

information, he immediately forwarded the information to the assistant district

attorney by email on May 11, 2016. Id. at 11, 14. The Commonwealth did not

delay in notifying the court or defense counsel of its recent knowledge that

the victim had relocated as the hearing on this new information was held five

days later. In the end, the Commonwealth was able to make contact with V.B.

and secure her testimony for trial.


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      Also, Garcia wrongly conflates the good–faith inquiry for determining

the unavailability of a witness under Rule of Evidence 804 with the due

diligence inquiry employed under Criminal Rule 600. He in effect concedes as

much, stating that “[t]he standard applied under Rule 804 is nearly identical

to the due diligence standard employed under Rule 600(A).” Garcia’s Br. at

24 (emphasis added).

      In any event, the standards are not “nearly identical.” Under Rule 804,

a witness who cannot be found at the time of trial will be deemed unavailable

only if a good-faith effort to locate the witness and compel his attendance at

trial has failed. “The burden of demonstrating such a good-faith effort is on

the party seeking to introduce the prior testimony, and [t]he question of the

sufficiency of the preliminary proof as to the absence of a witness is largely

within the discretion of the trial judge. The extent to which [a party] must go

in order to produce an absent witness is a question of reasonableness.”

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995)

(citations and quotation marks omitted). In contrast, Rule 600 provides that

time will be ruled excludable where the Commonwealth proves by a

preponderance of the evidence that it exercised due diligence in bringing the

defendant to trial. See Commonwealth v. Plowden, 157 A.3d 933, 941

(Pa.Super. 2017) (en banc). With these differing burdens in mind, the trial

court’s decision to give the Commonwealth more time to locate V.B. before

declaring her unavailable for purposes of Rule 804 does not amount to a



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determination that the Commonwealth did not act with due diligence for

purposes of Rule 600 in its effort to locate her. Therefore, we conclude the

trial court did not abuse its discretion by denying Garcia’s motion.


DISCRETIONARY SENTENCING

       “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before reviewing the merits of an appellant’s

challenge to the discretionary aspects of his sentence, we must determine

whether: (1) the appeal is timely; (2) the issue was preserved at sentencing

or in a post-sentence motion; (3) the brief includes a Pa.R.A.P. 2119(f)

statement;4 and (4) a substantial question is presented. See id.

       Here, Garcia’s appeal is timely, his issues were preserved, and he

provides a Rule 2119(f) statement. We now address whether he has presented

a substantial question. Garcia presents two sentencing issues. His first - “the

lower court did not sufficiently consider [his] rehabilitative potential or lack of

danger to the community,” - does not raise a substantial question. Garcia’s

Br. at 14; see Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super.

2013) (concluding claim that trial court failed to consider rehabilitative needs



____________________________________________


4 “An appellant who challenges the discretionary aspects of a sentence in a
criminal matter shall set forth in a separate section of the brief a concise
statement of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f).

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of appellant did not raise a substantial question). His second question fares

better. Garcia claims “the court imposed a sentence on a misdemeanor offense

that is well above the guidelines and then imposed it consecutively, without

stating any basis for these decisions on the record,” which raises a substantial

question. Garcia’s Br. at 14; see Commonwealth v. Antidormi, 84 A.3d

736, 759 (Pa.Super. 2014).

      We review a challenge to the discretionary aspects of sentencing for an

abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123

(Pa.Super. 2017). An abuse of discretion is present where “the sentencing

court ignored or misapplied the law, exercised its judgment for reasons of

partiality, prejudice, bias or ill-will, or arrived at a manifestly unreasonable

decision.” Id. (citation omitted).

      At the sentencing hearing, the trial court stated the following:

      Mr. Garcia, I am at a loss, to be honest with you. You show no
      contrition or remorse. And I sat through a trial that made me
      cringe the whole time. It was worse than any gun case I’ve ever
      seen. . . . We could not see on the camera what you and your
      friend did, but that lady took the stand and described for us what
      occurred and the horror that occurred inside the vehicle of
      somebody putting something over her face, trying to strangle her,
      somebody using a weapon that was a knife stabbing her inside the
      car. That wasn’t enough. You dragged the woman outside the car,
      and when I tell you it was like seeing a football pl[a]yer trying to
      kick a field goal with her head, the violence of the foot connecting
      with that woman’s head repeatedly over and over, and you sit and
      look at me, and honestly I see nothing.

      Despite the woman testifying that it was you and despite seeing a
      film where I see her and see someone who I believe to be you and
      I found to be you, the physical toll that you put on this woman are
      all aggravating factors in this case.

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      That’s what you did to this woman. You gave her a life sentence.
      She [will] never be the same person as before the beating. She’s
      sentenced to a life in a hospice or nursing home facility. She’s
      sentenced to life in a wheelchair where she can’t enjoy anything
      in life.

N.T., Sentencing, November 5, 2016, at 21-23. The trial court gave its

reasoning for the imposed sentence. While Garcia would have preferred that

the court focus all of its attention on his mental health issues, the court was

not remiss for also considering “the protection of the public” and “the gravity

of the offense as it relates to the impact on the life of the victim and on the

community.” 42 Pa.C.S.A. § 9721(b). The trial court did not abuse its

discretion and therefore Garcia’s claim fails.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/21/19




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