J-S03023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ENRICO THEODOSIUS RHODES

                            Appellant                 No. 849 WDA 2016


          Appeal from the Judgment of Sentence dated May 13, 2016
               In the Court of Common Pleas of Mercer County
             Criminal Division at No(s): CP-43-CR-0000567-2015

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.:                             FILED APRIL 13, 2017

        Appellant, Enrico Theodosius Rhodes, appeals from the judgment of

sentence of 27-96 months’ confinement imposed after a jury convicted him

of theft by unlawful taking, simple assault, harassment, and conspiracy

charges related to each of those three counts.1 We affirm.

        On August 26, 2014, Appellant assaulted and stole from Gary Butch,

owner of Butch’s Salvage, in Findley Township, Mercer County.        The trial

court found:

        The Criminal Complaint in this matter was filed on December 3,
        2014.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3921(a), 2701(a)(2), 2709(a)(1), and 903, respectively.
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       The Complaint was filed by Trooper Bogan of the Pennsylvania
       State Police, and a warrant was issued simultaneous with the
       filing of the Complaint.

       The Trooper had an Ohio address for [Appellant] based on a
       driver’s license.[2]

       The Trooper contacted the Pennsylvania State Trooper detailed
       to the United States Marshal’s Office and provided the
       information he had regarding the defendant’s location.

       The Pennsylvania State Police do not have the authority to arrest
       in the State of Ohio.

       Trooper Bogan remained in contact with the trooper assigned to
       said Task Force.

       [Appellant] was arrested on March 11, 2015.

       The preliminary hearing in this matter was continued from
       March 18, 2015, to April 1, 2015, at [Appellant’s] counsel’s
       request. That constitutes 15 days.

       The period of time between the filing of the Complaint and
       [Appellant]’s arrest is 98 days. . . .

       The omnibus hearing was continued on [Appellant]’s motion
       from July 27, 2015, to August 5, 2015, for a period of nine days.

Findings of Fact, 3/15/16, at 1-2 ¶¶ 1-9, 11; see also N.T., 3/15/16, at 5-

7; Trial Ct. Op., 6/24/16, at 1-3.

       On March 14, 2016, Appellant filed a motion to dismiss pursuant to

Pa.R.Crim.P. 600(D), contending that, since Pa.R.Crim.P. 600(A)(2)(a)

____________________________________________


2
  The driver’s license stated that Appellant lived in Youngstown, Ohio;
Trooper Bogan testified that he did not contact the Youngstown Police and
ask them to check that particular address, even though it was within his
authority to do so. N.T., 3/15/16, at 7.



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“requires a trial to be held within 365 days of the filing of the Criminal

Complaint,” Appellant’s trial should have been held by December 3, 2015.3

On March 15, 2016, following a hearing, the trial court denied the motion.

       On   March     18,   2016,    Appellant   was   convicted   of   the   charges

enumerated above, and, on May 13, 2016, Appellant was sentenced.                  On

June 10, 2016, Appellant filed this timely direct appeal in which he presents

a single issue for our review:

       Whether the trial court abused its discretion in finding the
       Commonwealth used due diligence in attempting to locate
       [Appellant] between the filing of the Complaint and the time of
       arrest?

Appellant’s Brief at 4. Appellant contends that the lack of due diligence in

arresting him resulted in a violation of Rule 400 by causing a delay of more

than 365 days between the filing of the complaint and his trial. He states:

“At issue is one time period[, t]he period between the filing of the Complaint

on December 3, 2014 and the date of arrest of [A]ppellant on March 11,

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3
   Rule 600(A)(2)(a) states: “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.” Rule 600(D)(1) provides:

       When a defendant has not been brought to trial within the time
       periods set forth in paragraph (A), at any time before trial, the
       defendant’s attorney, or the defendant if unrepresented, may file
       a written motion requesting that the charges be dismissed with
       prejudice on the ground that this rule has been violated. A copy
       of the motion shall be served on the attorney for the
       Commonwealth concurrently with filing. The judge shall conduct
       a hearing on the motion.



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2015.” Id. at 5.4 Appellant complains of a “complete lack of evidence of

any law enforcement activity in trying to apprehend or arrest the

[A]ppellant.” Id. at 6.

       “In evaluating Rule [600] issues, our standard of review of a trial

court’s   decision    is   whether     the     trial   court   abused   its   discretion.”

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

banc) (quoting Commonwealth v. Hill, 736 A.2d 578, 581 (Pa. 1999)),

appeal denied, 875 A.2d 1073 (Pa. 2005).

       The total number of calendar days that elapsed from the filing of the

criminal complaint on December 3, 2014, to the commencement of

Appellant’s trial on March 15, 2016, was 468 days5 -- which is greater than

the 365 days allotted by Pa.R.Crim.P. 600(A)(2)(a). Appellant concurs with

the trial court that 24 days should be deducted for his requested


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4
  Appellant therefore does not dispute that the following time periods were
properly excluded in calculating the elapsed time:

       [T]he period of time from the date the preliminary hearing was
       scheduled, March 18, 2015, to the date it was rescheduled at
       [Appellant]’s request, April 1, 2015, a period of 15 days; and the
       time when [Appellant]’s omnibus motion hearing was originally
       scheduled, July 27, 2015, to the date it was continued at
       [Appellant]’s request, August 5, 2015, a period of nine (9) days.

Trial Ct. Op., 6/24/16, at 3.
5
 Time is “computed as to exclude the first and include the last day of such
period.” 1 Pa.C.S. § 1908.



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continuances. Appellant’s Brief at 5; Trial Ct. Op., 6/24/16, at 4. However,

certain additional periods also may be excluded from the calculation:

      For purposes of paragraph (A) [of Pa.R.Crim.P. 600], 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. . . .

             Comment: . . . For purposes of determining the time
             within which trial must be commenced pursuant to
             paragraph (A), [the above] paragraph (C)(1) makes
             it clear that 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(C)(1) & cmt. (emphasis added).      Thus, the inquiry for a

court in determining whether there is a violation of the time periods in

Pa.R.Crim.P. 600(A) is whether       the   delay is caused solely by the

Commonwealth when the Commonwealth has failed to exercise due

diligence.   See, e.g., Commonwealth v. Matis, 710 A.2d 12, 16 (Pa.

1998).   “A court must account for any ‘excludable time’ and ‘excusable

delay.’ Excludable time is delay that is attributable to the defendant or his

counsel. Excusable delay is delay that occurs as a result of circumstances

beyond the Commonwealth’s control and despite its due diligence.”

Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa. Super. 2013)

(citations omitted), appeal denied, 85 A.3d 482 (Pa. 2014).

      With regard to the time between the filing of the complaint and the

defendant’s arrest, this Court has explained:

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      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. Commonwealth v. Cruz, 362 Pa.Super.
      282, 524 A.2d 507, 509 (1987), citing, Commonwealth v.
      Branch, 337 Pa.Super. 22, 486 A.2d 460 (1984). The actions
      must be judged by what was done, not by what was not done.
      In addition, the 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).

     In the current action, the only information that Trooper Bogan had

regarding Appellant’s location at the time the complaint was filed was that

Appellant resided near Youngstown, Ohio.      Trooper Bogan provided this

information to the United States Marshal’s Office and asked that Office to

assist him in apprehending Appellant. Findings of Fact, 3/15/16, at 2 ¶ 4;

N.T., 3/15/16, at 7.     Trooper Bogan remained in contact with the U.S.

Marshal’s Office until Appellant was arrested on March 11, 2015. Findings of

Fact, 3/15/16, at 2 ¶¶ 6-7; N.T., 3/15/16, at 8. The trial court concluded,

“While there may have been other things Trooper Bogan could have done,

his efforts were reasonable.” Trial Ct. Op., 6/24/16, at 4-5. We agree.

     As   explained    above,   the   Commonwealth   need   only   engage   in

reasonable efforts; we cannot find a lack of due diligence “simply because

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

productive.”   Ingram, 591 A.2d at 737.        Thus, even if, as Appellant

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contends, law enforcement possibly could have done more to apprehend or

arrest Appellant, see Appellant’s Brief at 6, 8,6 the Commonwealth and its

entities need not demonstrate that they utilized all available options.   See

Ingram, 591 A.2d at 737.

       We have carefully reviewed the record, and we conclude that it

supports the trial court’s findings of fact that the Commonwealth’s actions,

viewed in the requisite manner, were reasonable and establish due diligence.

Further, we agree with the trial court that the period of time during which

the Commonwealth attempted to apprehend Appellant was properly omitted

from the computation of time for the purpose of calculating the time by

which Appellant’s trial should have commenced. Pa.R.Crim.P. 600(A)(2)(a),

(C)(1).    From the date that Trooper Bogan filed the written complaint

(December 3, 2014) to the date of Appellant’s arrest (March 11, 2015), 98

days elapsed.     When these days and the agreed-upon days resulting from

Appellant’s requested continuances are excluded from the total calendar

days between the complaint and the commencement of trial, the net elapsed

time is 346 days, which is less than the maximum of 365 days permitted by

Pa.R.Crim.P. 600(A)(2)(a).


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6
  Appellant suggests that Trooper Bogan could have made more of an “effort
to arrest Appellant” and could have contacted the authorities in the
Youngstown, Ohio, area (the city listed on Appellant’s driver’s license as his
residence). Appellant’s Brief at 8 (citing N.T., 3/15/16, 5-7).



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     Accordingly, having discerned no abuse of discretion, we hold that the

trial court properly denied Appellant’s motion to dismiss pursuant to

Pa.R.Crim.P. 600(D), and affirm the judgment of sentence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2017




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