Com. v. Salcido, J. ( 2015 )


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  • J-S58041-15
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    JUAN CARLOS SALCIDO
    Appellant                  No. 128 MDA 2015
    Appeal from the Judgment of Sentence December 15, 2014
    In the Court of Common Pleas of Berks County
    Criminal Division at No(s): CP-06-CR-0002353-2011
    BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*
    MEMORANDUM BY GANTMAN, P.J.:                     FILED DECEMBER 16, 2015
    Appellant, Juan Carlos Salcido, appeals from the judgment of sentence
    entered in the Berks County Court of Common Pleas, following his bench
    trial convictions for two (2) counts each of delivery of a controlled
    substance, simple possession, and possession of drug paraphernalia. 1       We
    affirm.
    The relevant facts and procedural history of this appeal are as follows.
    In July 2009, Appellant was a subject of an undercover drug investigation
    carried out by the Pennsylvania State Police (“PSP”) and the Berks County
    Drug Task Force.        PSP Trooper Charity Farrell conducted surveillance on
    ____________________________________________
    1
    35 P.S. §§ 780-113(a)(30), (a)(16), (a)(32), respectively.
    _____________________________
    *Retired Senior Judge assigned to the Superior Court.
    J-S58041-15
    Appellant and observed him sell drugs to an undercover officer. On July 24,
    2009, Trooper Farrell and Trooper Robert Hipp executed a search warrant on
    Appellant’s parents’ house, where Appellant lived at the time.   Appellants’
    parents and brother were present. On that same date, Trooper Farrell and
    Detective Stephen Brock interviewed Appellant at the PSP headquarters in
    Reading.   Appellant expressed interest in cooperating with ongoing drug
    investigations.   Trooper Farrell exchanged phone numbers with Appellant
    and released him. Trooper Farrell’s subsequent attempts to reach Appellant
    by telephone were unsuccessful. Appellant made no calls to Trooper Farrell
    either.
    The Commonwealth filed a criminal complaint against Appellant on
    September 21, 2009. An arrest warrant was issued on that same day. The
    arrest warrant was made part of a countywide sweep that occurred on
    September 23, 2009, but the police were unable to serve the warrant on
    Appellant because he had made himself unavailable.      On that same date,
    Trooper Farrell also called Appellant on his cell phone and on his house
    phone but received no answer.      Trooper Farrell also entered Appellant’s
    information into the National Crime Information Center (“NCIC”) and
    Commonwealth Law Enforcement Assistance Network (“CLEAN”) databases.
    On September 29, 2009, Trooper Farrell went to Appellant’s residence but
    he was not there.    Trooper Farrell told Appellant’s parents that she had a
    warrant for Appellant’s arrest.   Trooper Farrell was unsure if Appellant’s
    parents understood her because they spoke little English.    On October 7,
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    2009, Trooper Farrell entered information into NCIC and CLEAN on a vehicle
    Appellant was known to drive.     In January 2010, Trooper Farrell entered
    Appellant’s information into Crime Stoppers.     During that month, Trooper
    Farrell also contacted Berks County Prison to see if Appellant had been
    arrested for any reason.     Additionally, Trooper Farrell regularly checked
    NCIC and CLEAN to ensure Appellant’s information was still active. Trooper
    Farrell ultimately filed a fugitive notice for Appellant on March 3, 2011. On
    March 16, 2011, Trooper Hipp went to Appellant’s residence and tried again
    to serve the arrest warrant but nobody was home.         The Reading police
    ultimately located and arrested Appellant on May 14, 2011.
    The Commonwealth’s information charged Appellant with two (2)
    counts each of delivery of a controlled substance, simple possession, and
    possession of drug paraphernalia. On December 15, 2011, Appellant filed a
    motion to dismiss the charges pursuant to Pa.R.Crim.P. 600.      Following a
    hearing, the court denied the Rule 600 motion on February 13, 2012. The
    case proceeded to a bench trial, and the court convicted Appellant of all
    charges on December 15, 2014.       On that same date, the court sentenced
    Appellant to a term of three (3) years’ probation.
    Appellant filed a timely notice of appeal on January 14, 2015.      On
    January 26, 2015, the court ordered Appellant to file a concise statement of
    errors complained of on appeal per Pa.R.A.P. 1925(b).        The order was
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    J-S58041-15
    served on January 28, 2015. Appellant filed a Rule 1925(b) statement on
    February 19, 2015.2
    Appellant raises the following issue for our review:
    DID THE [TRIAL] COURT ERR IN DENYING [APPELLANT’S]
    PRETRIAL MOTION FOR DISMISSAL UNDER RULE 600
    WHERE 597 DAYS PASSED BETWEEN THE FILING OF THE
    CRIMINAL COMPLAINT AND [APPELLANT’S] ARREST?
    (Appellant’s Brief at 4).
    In his sole issue, Appellant argues he was arrested more than 365
    days after the criminal complaint had been filed.      Appellant contends the
    Commonwealth wrongly inferred, without any basis in fact, that Appellant
    had fled to avoid arrest.         Appellant claims the Commonwealth failed to
    exercise due diligence to apprehend Appellant and bring his case to trial
    within the time requirements of Pa.R.Crim.P. 600. Appellant asserts there is
    no evidence that any police officer actually attempted to serve Appellant’s
    arrest warrant during the countywide sweep in September 2009. Appellant
    also discounts Trooper Farrell’s visit to Appellant’s home because Trooper
    Farrell was unsure if Appellant’s parents understood anything she said.
    Appellant alleges the next attempt to arrest Appellant at his home was made
    ____________________________________________
    2
    Appellant’s Rule 1925(b) statement was untimely. Nevertheless, this Court
    may address the merits of a criminal appeal where a defendant files an
    untimely Rule 1925(b) statement, if the trial court had adequate opportunity
    and chose to prepare an opinion addressing the issue(s) raised on appeal.
    See Commonwealth v. Burton, 
    973 A.2d 428
     (Pa.Super. 2008) (en banc).
    Here, the trial court filed a Rule 1925(a) opinion, which addresses
    Appellant’s sole issue raised on appeal. Therefore, we decline to waive
    Appellant’s issue.
    -4-
    J-S58041-15
    541 days after the criminal complaint had been filed.         Appellant further
    argues that entry of his information into law enforcement databases, and
    Trooper Farrell’s act of checking Berks County Prison, were insufficient to
    comply with Rule 600.      Appellant characterizes these actions as “space-
    holding efforts at best,” and claims, “[N]o evidence [exists] that [Appellant]
    was not still living at home with his parents and working/playing where he
    always worked or played.” (Appellant’s Brief at 13-14). Appellant concludes
    the trial court should have granted his Rule 600 motion and dismissed all
    charges. We disagree.
    “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), appeal denied,
    
    583 Pa. 659
    , 
    875 A.2d 1073
     (2005).
    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.
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    J-S58041-15
    Id. at 1238-39 (internal citations and quotation marks omitted).
    The version of Rule 600 in effect at the relevant time of Appellant’s
    case provided, in pertinent part:
    Rule 600. Prompt Trial
    *       *   *
    [(A)](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.
    *       *   *
    (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[.]
    Pa.R.Crim.P. 600(A)(3), (C)(1) (prior version).3        “Rule 600 generally
    requires the Commonwealth to bring a defendant…to trial within 365 days of
    the date the complaint was filed.” Hunt, supra at 1240. To obtain relief, a
    defendant must have a valid Rule 600 claim at the time he files his motion
    for relief. Id. at 1243.
    “The mechanical run date is the date by which the trial must
    commence under Rule 600.” Commonwealth v. McNear, 
    852 A.2d 401
    ,
    ____________________________________________
    3
    A new version of Rule 600 went into effect on July 1, 2013, after the trial
    court had disposed of Appellant’s Rule 600 motion.
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    406 (Pa.Super. 2004).
    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.
    
    Id.
    In the context of Rule 600, “excludable time” is differentiated from
    “excusable delay” as follows:
    “Excludable time” is defined in Rule 600(C) as 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 whereabouts were unknown
    and could not be determined by due diligence; any period
    of time for which the defendant expressly waives Rule 600;
    and/or 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. “Excusable delay” is not expressly
    defined in Rule 600, but the legal construct takes into
    account delays which occur as a result of circumstances
    beyond the Commonwealth’s control and despite its due
    diligence.
    Hunt, 
    supra at 1241
     (internal citations and footnote omitted).
    Even where a violation of Rule 600 has technically occurred, we
    recognize:
    [T]he motion to dismiss the charges should be denied if
    the Commonwealth exercised due diligence and…the
    circumstances occasioning the postponement were beyond
    the control of the Commonwealth.
    Due diligence is a fact-specific concept that must be
    determined on a case-by-case basis. Due diligence does
    -7-
    J-S58041-15
    not require perfect vigilance and punctilious care, but
    rather a showing by the Commonwealth that a
    reasonable effort has been put forth.
    Commonwealth v. Brown, 
    875 A.2d 1128
    , 1138 (Pa.Super. 2005), appeal
    denied, 
    586 Pa. 734
    , 
    891 A.2d 729
     (2005) (quoting Hunt, 
    supra
     at 1241-
    42) (emphasis in original).   “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. Jones, 
    886 A.2d 689
    , 701 (Pa.Super.
    2005), appeal denied, 
    587 Pa. 686
    , 
    897 A.2d 452
     (2006).           “The only
    occasion requiring charges to be dismissed occurs if the Commonwealth fails
    to bring the defendant to trial within three hundred sixty-five days, taking
    into account all excludable time and excusable delay.” Commonwealth v.
    Murray, 
    879 A.2d 309
    , 314 (Pa.Super. 2005).
    Instantly, the trial court found as follows:
    14. [Trooper Farrell] testified that she drafted an arrest
    warrant for [Appellant] on September 21, 2009 for the
    buys that had taken place [in July 2009,] not having
    anything to do with the search warrant that was issued.
    The arrest warrant was issued September 21, 2009[,] and
    [Appellant] was to be part of a county round-up of other
    [d]efendants.
    15. Trooper Farrell testified that she tried calling
    [Appellant] on his cell phone and his house phone and had
    no response.
    16. Trooper Farrell testified she entered [Appellant] into
    NCIC/CLEAN and entered his vehicle into both as well and
    that she had gone to his parents’ house looking for him.
    17. Trooper Farrell testified she checked with Berks
    County Prison to make sure [Appellant] was not in jail.
    She posted [Appellant] on Crime Stoppers locally.
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    J-S58041-15
    18. [Trooper Farrell] testified that when the arrest
    warrant went down, [Appellant] was living with his parents
    so that is why she went to that home.
    19. [Appellant] was picked up in 2011 by the Reading
    Police Department. And [Trooper Farrell] testified [that
    Appellant] was born in Mexico.
    20. The trooper testified about Exhibits 1, 2, and 3
    relating to the testimony and NCIC.
    21. Trooper Robert Hipp testified that he works with the
    Pennsylvania State Police in Troop L in Reading and that
    his job is to serve warrants and look for wanted people.
    22. Trooper Hipp was assigned the warrant and
    attempted to serve it by going to the address on
    Greenwich Street and he made no contact with anybody
    there[,] which occurred in March of 2011.
    *       *   *
    In this matter, the [c]ourt finds that the Commonwealth
    used due diligence.
    (Trial Court Order, filed February 13, 2012, at 3-6).4 The record supports
    the court’s conclusion, and we see no reason to disturb it.                The
    Commonwealth filed the criminal complaint on September 21, 2009. Thus,
    the initial mechanical run date was September 21, 2010. Nevertheless, the
    police were unable to arrest Appellant until May 14, 2011, because his
    whereabouts were unknown.               We agree with the trial court that the
    Commonwealth exercised due diligence to apprehend Appellant during the
    ____________________________________________
    4
    In addition, Trooper Farrell filed a fugitive notice for Appellant on March 3,
    2011.
    -9-
    J-S58041-15
    period between the filing of the criminal complaint and the date of his arrest.
    Appellant’s attempt to find fault with certain actions the police took is
    unpersuasive. “Perfect vigilance” and “punctilious care” were not required.
    The trial court acted within its discretion when it concluded that, viewed
    together, the officers’ actions amounted to reasonable efforts to locate and
    arrest Appellant.    See Brown, 
    supra;
     Jones, supra; Hunt, 
    supra.
    Therefore, the delay between September 21, 2009 and May 14, 2011
    constituted 600 days of excludable time. See Hunt, 
    supra.
     This excludable
    time yielded an adjusted trial run date of May 13, 2012. Appellant filed his
    Rule 600 motion on December 15, 2011, which preceded the adjusted run
    date. Thus, Appellant did not have a viable Rule 600 claim when he filed his
    motion to dismiss. See 
    id.
     Therefore, the court properly denied Appellant’s
    Rule 600 motion. Accordingly, we affirm.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/16/2015
    - 10 -
    

Document Info

Docket Number: 128 MDA 2015

Filed Date: 12/16/2015

Precedential Status: Precedential

Modified Date: 12/16/2015