Com. v. Powell, D.

J-S47002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLLON LEE POWELL :
:
Appellant : No. 991 WDA 2017
Appeal from the Judgment of Sentence June 9, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000426-2017
BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 2, 2018
Appellant, Dyllon Lee Powell, appeals from the judgment of sentence
entered on June 9, 2017 in the Criminal Division of the Court of Common Pleas
of Allegheny County. We affirm.
The trial court summarized the factual history and procedural
background in this case as follows:
[Appellant] was charged with escape after failing to return to
Riverside Community Corrections Center[, a facility operated by
the Pennsylvania Department of Corrections,] at the expiration of
a period of authorized work leave. [Appellant’s] work leave began
on March 4, 2016, at approximately 4:30 p.m., and he was to
return to the corrections center no later than 3:00 a.m. on March
5, 2016. When [Appellant] did not return to Riverside at the
expiration of this leave period, an employee of the facility notified
police. On March 5, 201[6], the Pennsylvania State Police
(hereinafter referred to as “PSP”) filed a criminal complaint
charging [Appellant] with one count of escape, and a warrant was
issued for [his] arrest. The PSP documented its efforts to execute
the arrest warrant for [Appellant] by way of a departmental
document referred to as a due diligence of warrant service report.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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On September 12, 201[6], [Appellant] was arrested on unrelated
charges in Westmoreland County, at which time the outstanding
arrest warrant was discovered. [Appellant] was lodged in the
Westmoreland County Jail on the unrelated charges on September
12, 201[6], and was subsequently booked into the Allegheny
County Jail on the escape charge, on December 13, 2016. On or
about April 28, 2017, [Appellant] filed a [m]otion to [d]ismiss
pursuant to Pa.R.Crim.P. 600, in which he alleged that his speedy
trial rights had been violated. A Rule 600 hearing was held on
May 16, 2017, after which [the trial court] denied [Appellant’s]
Rule 600 [m]otion to [d]ismiss. [Appellant] waived his right to a
jury trial, and a non-jury trial commenced on June 9, 2017.
[Appellant] was found guilty on the single escape charge, and was
sentenced to time served, and three (3) years of supervised
probation.
[Appellant] filed [a n]otice of [a]ppeal to th[is C]ourt, on or about
July 10, 2017. Th[e trial c]ourt thereafter issued an [o]rder
directing [Appellant] to file his statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b). [Appellant] timely
filed his 1925(b) statement on September 28, 2017. In his
statement of matters complained of on appeal, [Appellant]
allege[d] that th[e trial c]ourt erred in denying his Rule 600
[m]otion, arguing that the Commonwealth did not exercise due
diligence in attempting to bring him to trial within the 365-day
period prescribed by Rule 600. [Appellant] therefore argue[d]
that [the trial court should have granted his Rule 600 motion. On
April 26, 2018, the trial court issued its Rule 1925(a) opinion
setting forth its reasons for denying Appellant’s speedy trial
claims.]
Trial Court Opinion, 4/26/18, at 2-3.
Appellant raises the following issue for our consideration:
I. Does the trial court abuse its discretion by denying
[Appellant’s] Rule 600 [m]otion when the Commonwealth
fails to act with due diligence in locating, apprehending, and
securing [Appellant] in order to bring him to trial within 365
days?
On appeal, Appellant asserts that the trial court erred and abused its
discretion in denying his motion pursuant to Pa.R.Crim.P. 600 since the
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Commonwealth failed to exercise due diligence in locating, apprehending, or
securing his presence at trial within the time-period prescribed by Rule 600.
In support of his claim, Appellant contends:
The Commonwealth failed to act with due diligence in attempting
to locate and apprehend [Appellant]. Law enforcement merely
dispersed the warrant to other agencies, which ensured the
creation of a wanted poster, checked some databases once,
checked the police Facebook page once, and went to only one of
several prior addresses for [Appellant] and asked some questions
while there.
The police did not periodically check databases or social media.
The police did not periodically patrol areas [Appellant] frequented
or areas of prior addresses. The police did not even check all of
[Appellant’s] prior addresses. The police failed to interview family
members, friends, or acquaintances. The police failed to interview
[Appellant’s] employer. The police failed to interview anyone
associated with [Appellant’s] employer. The police failed to
interview anyone associated with [Appellant’s] halfway house to
gain insight into where he might have gone.
These meager actions by the police of distributing the warrant and
checking databases and Facebook one time, and then five months
later going to one address, do not constitute due diligence in
bringing [Appellant] to trial within 365 days. For these reasons,
the trial court abused its discretion by failing to grant [Appellant’s]
motion to dismiss his case based on a violation of Rule 600.
Appellant’s Brief at 11.
“We review an order denying a Rule 600 motion to dismiss for an abuse
of discretion, considering only the evidence of record at the Rule 600 hearing,
and the trial court's factual findings.” Commonwealth v. Dixon, 140 A.3d
718, 723 (Pa. Super. 2016) (citation omitted), appeal denied, 159 A.3d 938
(Pa. 2016). “Further, an appellate court must view the facts in the light most
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favorable to the prevailing party which, in this case, is the Commonwealth.”
Id. (quotation omitted).
Although we have not identified a case involving the precise factual
pattern presented here, we doubt whether the Commonwealth owed any duty
to exercise due diligence in apprehending Appellant in view of his willful
decision to abscond from the custody of the Department of Corrections. Our
Supreme Court has held:
[T]he general rule is that, where a period of delay is caused by
the defendant's willful failure to appear at a court proceeding of
which he has notice, exclusion is warranted. Further, if a
defendant is deemed to have had reasonable notice of court
proceedings, but fails to appear, the Commonwealth's due
diligence in attempting to locate him need not be assessed.
Commonwealth v. Baird, 975 A.2d 1113, 1118 (Pa. 2009).
Appellant in this case intentionally failed to return to the custody of the
Department of Corrections at the conclusion of his allotted work release
period. Appellant was certainly aware that his willful failure to return to the
Riverside Community Corrections Center would result in immediate criminal
prosecution. These circumstances are highly analogous to the situation
presented when a defendant fails to appear at a known judicial proceeding.
Hence, the delay caused by Appellant’s willful failure to return to custody is
subject to exclusion under Rule 600 and we need not assess the
Commonwealth’s diligence during the period extending from March 5, 2016,
the date Appellant absconded from custody, until September 12, 2016, the
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date he was arrested on unrelated charges in Westmoreland County. When
this period is excluded, Appellant’s trial clearly commenced in a timely
manner.1
Even if we were to assess the Commonwealth’s diligence, we would
conclude that Appellant is not entitled to relief. In relevant part, Rule 600
provides:
Rule 600. Prompt Trial
(A) Commencement of Trial; Time for Trial
***
(2) Trial shall commence within the following time periods.
(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.
***
(C) Computation of Time
(1) For purposes of paragraph (A), periods of delay at any stage
of the proceedings caused by the Commonwealth when the
Commonwealth has failed to exercise due diligence shall be
included in the computation of the time within which trial must
commence. Any other periods of delay shall be excluded from the
computation.
Pa.R.Crim.P. 600.
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1 Appellant does not address whether the Commonwealth owed any duty to
exercise due diligence in view of his willful failure to return to custody.
Instead, he focuses his appellate claims on whether the Commonwealth
exercised due diligence.
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The commentary to Rule 600 offers the following guidance in applying
the rule.
Computation of Time
For purposes of determining the time within which trial must be
commenced pursuant to paragraph (A), 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. Thus, the inquiry for a judge in determining whether
there is a violation of the time periods in paragraph (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. Dixon, 907 A.2d 468 (Pa. 2006);
Commonwealth v. Matis, 710 A.2d 12 (Pa. 1998). If the delay
occurred as the result of circumstances beyond the
Commonwealth's control and despite its due diligence, the time is
excluded. See, e.g. Commonwealth v. Browne, 584 A.2d 902
(Pa. 1990); Commonwealth v. Genovese, 425 A.2d 367 (Pa.
1981). In determining whether the Commonwealth has exercised
due diligence, the courts have explained that “[d]ue diligence is
fact-specific, to be determined case-by-case; it does not require
perfect vigilance and punctilious care, but merely a showing the
Commonwealth has put forth a reasonable effort.” See, e.g.,
Commonwealth v. Selenski, 994 A.2d 1083, 1089 (Pa. 2010)
(citing Commonwealth v. Hill and Commonwealth v. Cornell,
736 A.2d 578, 588 (Pa. 1999)).
Pa.R.Crim.P. 600 cmt.2
The Commonwealth bears the burden of proving, by a preponderance
of the evidence, that it acted with reasonable diligence in attempting to
____________________________________________
2 The mechanical run date is the date by which trial must commence under
Rule 600. The mechanical run date is calculated by adding 365 days to the
date on which the criminal complaint is filed. This date is subject to
modification by adding any periods of time in which delay is caused by factors
other than those attributable to the Commonwealth when the Commonwealth
has failed to exercise due diligence. This is known as the adjusted run date.
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apprehend a criminal defendant. Commonwealth v. Newman, 555 A.2d
151, 155 (Pa. Super. 1989), appeal denied, 655 A.2d 512 (Pa. 1995). “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. We have held that, where the
Commonwealth exercises due diligence in attempting to locate a defendant
prior to arrest, the period of elapsed time between the date of the filing of the
complaint and the date of the arrest is excludable[.]” Id. “[L]ack 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 prior cases, we have explained:
It is not the function of our courts to second-guess the methods
used by police to locate accused persons. The analysis to be
employed is whether, considering the information available to the
police, they have acted with diligence in attempting to locate the
accused. Deference must be afforded the police officer's
judgment as to which avenues of approach will be fruitful.
Commonwealth v. Laurie, 483 A.2d 890, 892 (Pa. Super. 1984), quoting
Commonwealth v. Mitchell, 372 A.2d 826, 832 (Pa. Super. 1977). The fact
that police officials could have done more, in hindsight, to locate and
apprehend an accused individual is insufficient to grant a defendant's speedy
trial motion. Police officers need not “exhaust every conceivable method of
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locating a defendant.” Laurie, 483 A.2d at 892. In other words, courts do
not ask what could have been done but, instead, focus on whether the
Commonwealth’s actual search efforts were sufficient to constitute due
diligence. Id.
Here, the trial court found that the Commonwealth exercised due
diligence.
Following the issuance of the arrest warrant, [PSP] commenced
efforts to locate [Appellant]. During [Appellant’s] Rule 600
hearing, members of the PSP testified that the agency
disseminated the arrest warrant for [Appellant], along with other
relevant information, to both state and local law enforcement
agencies, the PSP Fugitive Task Force, and Crime Stoppers. [See
Rule 600 N.T., 5/16/17, at 4-10]. The PSP also utilized social
media to attempt to locate [Appellant]. Id. In addition to their
administrative efforts to locate [Appellant], a [t]rooper traveled
to [Appellant’s] last known address and canvassed the
neighborhood. Id. at 19. The PSP documented their attempts to
locate [Appellant] by way of a due diligence of warrant service
report. Id. at 5 and 18. Despite the efforts of the PSP, [Appellant]
evaded capture until September 12, 2016, when he was arrested
on the unrelated charges in Westmoreland County, and the
outstanding arrest warrant was discovered.
Trial Court Opinion, 4/26/18, at 6-7.
In light of all of the foregoing, we conclude that the trial court correctly
held that the Commonwealth exercised due diligence. Appellant’s contention
that other means of securing his apprehension were available to police
authorities does not alter this result. We have repeatedly held that police
officers are entitled to deference in selecting the methods they deem to be
the most effective in locating a defendant. See e.g. Laurie, 483 A.2d at 892.
In addition, Rule 600 requires us to balance the accused's speedy trial rights
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against the need to protect society. Commonwealth v. Ramos, 936 A.2d
1097, 1100 (Pa. Super. 2007) (“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.”), appeal denied, 948 A.2d 803 (Pa.
2008). For all of these reasons, we conclude the trial court properly denied
Appellant’s Rule 600 motion.
Judgment of sentence affirmed.
Judge Strassburger joins and files a Concurring Statement.
Judge McLaughlin concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/2018
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