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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN WILSON
Appellant No. 2593 EDA 2013
Appeal from the Judgment of Sentence Entered February 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014270-2009 and CP-51-CR-
0015266-2009
BEFORE: STABILE, JENKINS, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 17, 2015
Appellant, Stephen Wilson, appeals from the February 8, 2013
judgment of sentence imposing an aggregate eight to sixteen years of
incarceration followed by five years of probation for his sexual assaults of
two young men, one of whom was Appellant’s cousin and a minor at the
time of the offense. On appeal, Appellant argues the trial court erred in
denying his motions to dismiss the consolidated prosecutions pursuant to
Pa.R.Crim.P. 600. After careful review, we affirm.
Appellant’s sexual assault of his cousin, L.S., took place on December
5, 2008. Appellant got L.S. drunk in a hotel room and forced him to perform
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*
Retired Senior Judge assigned to the Superior Court.
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fellatio on Appellant. Appellant then had anal sex with L.S. without L.S.’s
consent.
Appellant met the second victim, B.P., in an internet chat room, then
traveled to B.P.’s apartment on September 15, 2009 to meet him in person.
Appellant and B.P. remained together in B.P.’s apartment into the early
morning hours of September 16, 2009. The two got into an argument,
during which Appellant drew a knife. Appellant used the knife to cut B.P. on
his face, abdomen, shoulders and back. Subsequently, Appellant had anal
sex with B.P. without B.P.’s consent. After the sex, Appellant choked B.P.
until he blacked out. B.P. regained consciousness to find Appellant having
anal sex with him for a second time. Police apprehended Appellant on
September 16, 2009 in connection with his offenses against B.P.
The prosecutions pertaining to Appellant’s offenses against these two
victims were consolidated for a June 15, 2012 bench trial. At the conclusion
of trial, the judge found Appellant guilty of aggravated assault, possession of
an instrument of crime, indecent assault by forcible compulsion, simple
assault, recklessly endangering another person and sexual assault against
B.P.1 The court also found Appellant guilty of unlawful contact with a minor,
sexual assault, endangering the welfare of children, corruption of minors,
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1
18 Pa.C.S.A. §§ 2702, 907(a), 3126(a)(2), 2701(a), 2705, and 3124.1
respectively.
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and indecent assault by forcible compulsion against his cousin. 2 On
February 8, 2013, the trial court imposed sentence as set forth above. The
trial court also determined Appellant to be a sexually violent predator. This
timely appeal followed.
Appellant argues the trial court erred in denying his Pa.R.Crim.P. 600
motions to dismiss for both prosecutions.3 We review the trial court’s
decision for abuse of discretion. Commonwealth v. Sloan, 67 A.3d 1249,
1251 (Pa. Super. 2013) (citing Commonwealth v. Hunt, 858 A.2d 1234,
1238 (Pa. Super. 2004) (en banc)). “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 … discretion is abused.”
Commonwealth v. Bradford, 46 A.3d 693, 700 (Pa. 2012). “Our scope of
review is limited to the record evidence from the Rule 600 hearing and the
findings of the lower court, viewed in the light most favorable to the
prevailing party.” Id.
We have explained that Rule 600 has the dual purpose of
both protecting a defendant’s constitutional speedy trial rights
and protecting society’s right to effective prosecution of criminal
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2
18 Pa.C.S.A. §§ 6318(a)(1), 3124.1, 4304(a)(1), 6301(a)(1), and
3126(a)(2), respectively.
3
A revised version of Rule 600 took effect on July 1, 2013. We will consider
the prior version, as that version was applicable when Appellant filed his
Rule 600 motions.
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cases. To protect the defendant’s speedy trial rights, Rule 600
ultimately provides for the dismissal of charges if the
Commonwealth fails to bring the defendant to trial within 365
days of the filing of the complaint (the ‘mechanical run date’),
subject to certain exclusions for delays attributable to the
defendant. Conversely, to protect society’s right to effective
prosecution prior to dismissal of charges, Rule 600 requires the
court to consider whether the Commonwealth exercised due
diligence, and whether the circumstances occasioning the delay
of trial were beyond the Commonwealth’s control. If the
Commonwealth exercised due diligence and the delay was
beyond the Commonwealth’s control, the motion to dismiss shall
be denied. The Commonwealth, however, has the burden of
demonstrating by a preponderance of the evidence that it
exercised due diligence. As has been oft stated, [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.
If, at any time, it is determined that the Commonwealth did not
exercise due diligence, the court shall dismiss the charges and
discharge the defendant.
Id. at 701-02 (citations and quotation marks omitted).
We begin with a procedural history in the L.S. matter. The docket
reveals the Commonwealth filed its complaint against Appellant on January
14, 2009, or 1,248 days4 before trial commenced on June 15, 2012. As of
that date, Appellant’s whereabouts were unknown. Police apprehended him
on September 16, 2009, the day of Appellant’s offenses against B.P. The
trial court found the 245 days between the complaint and arrest excludable
because the Commonwealth exercised due diligence in apprehending
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4
Appellant filed several motions for dismissal under then-effective Rule
600(G) throughout the proceedings. He also filed a post-sentence motion
arguing the trial court erred in denying his pre-trial Rule 600 motions.
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Appellant. The original trial date was July 27, 2010, within one year of
Appellant’s apprehension. At a June 7, 2010 hearing on one of Appellant’s
Rule 600 motions, however, defense counsel indicated he would be on
vacation on that date and was unable to procure another member of the
Philadelphia Public Defender’s office to handle the trial. The trial court
therefore removed the Public Defender’s office as counsel and appointed new
counsel. New counsel was unable to prepare in time for the July 27, 2010
trial and therefore requested a continuance. The court scheduled trial for
the next available date, which was March 15, 2011, and noted that the
resulting delay was excludable.5
The March 15, 2011 proceeding turned out to be a scheduling
conference rather than a trial date, because the case was transferred from
one trial judge to another pursuant to the ongoing reorganization of the
Philadelphia County Court of Common Pleas Criminal Division. At the March
15, 2011 conference, Judge William J. Mazzola set trial for July 7, 2011. On
July, 7, 2011, however, defense counsel withdrew. The trial court appointed
new counsel on September 13, 2011, and set trial for the next available
date, which was March 5, 2012. Trial was continued once again on March 5,
2012, because Judge Mazzola was hearing a trial in another case. On April
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5
We are sympathetic with Appellant’s frustration at the delay resulting from
defense counsel’s vacation plans. For purposes of Rule 600, however, we
must focus on the diligence of the Commonwealth, not that of defense
counsel.
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13, 2012, the next scheduled trial date, Judge Mazzola was once again
involved in another trial, as was the prosecutor assigned to this matter. The
trial court attributed these two delays to court congestion. The next
scheduled trial date was June 15, 2012, at which time the trial took place.
In summary, the trial court attributed the entirety of the delay
between the original July 27, 2010 trial date and the June 12, 2012 trial to
defense or to court congestion. This 689-day period added to the 245 days
in between the complaint and Appellant’s arrest accounts for 934 days of
delay not attributable to the prosecution. Subtracting those 934 days from
the 1,248 days between the complaint and trial leaves a difference of 314
days. The trial court therefore found no violation of former Rule 600(A)(3).6
Appellant first argues the trial court erred in finding the
Commonwealth acted with due diligence in apprehending Appellant. Former
Rule 600(C)(1) provides:
In determining the period for commencement of trial,
there shall be excluded therefrom […] 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.
Pa.R.Crim.P. 600(C)(1), repealed.
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6
Former Rule 600(A)(3) required trial in this matter to commence within
365 days of the complaint, less any excludable time. See Pa.R.Crim.P.
600(A)(3) (rescinded October 1, 2012, effective July 1, 2013).
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Appellant fails to cite any legal authority governing the
Commonwealth’s obligation to exercise diligence in locating and
apprehending a defendant. We could deem Appellant’s argument waived on
that basis. See Pa.R.A.P. 2119(b). We decline to do so, however, and our
analysis reveals Appellant’s argument to be lacking in merit.
As noted above, the Commonwealth bore the burden of proving its
diligence by a preponderance of the evidence. Bradford, 46 A.3d at 702.
Concerning the Commonwealth’s burden of proving diligence in
apprehending a defendant, we have explained:
It seems clear that the test is not a venture into hindsight
reasoning as to whether, if certain individuals had been
contacted, on [sic] other things done, an arrest would probably
have been made. The matter of availability and due diligence
must be judged by what was done by the authorities rather than
what was not done. The standard of due diligence demands only
reasonable efforts.
Commonwealth v. Faison, 471 A.2d 902, 903 (Pa. Super. 1984).
For example, in Commonwealth v. Ingram, 591 A.2d 734, 737 (Pa.
Super. 1991), appeal denied, 606 A.2d 901 (1992), police attempted to
execute the arrest warrant at the defendant’s last known address, posted a
wanted message in the Philadelphia Crime Information Center (“PCIC”), and
maintained surveillance on neighborhoods where they had seen the
defendant in the past. This Court deemed those efforts sufficient. Id. at
737-38. Similarly, in Commonwealth v. Newman, 555 A.2d 151 (Pa.
Super. 1989), appeal denied, 655 A.2d 512 (Pa. 1995), this Court found
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police exercised sufficient diligence where they posted wanted messages in
the PCIC and National Crime Information Center (“NCIC”), maintained
contact with the defendant’s mother and the victim, and provided other
police departments with wanted posters with the defendant’s name and
likeness on them. Id. at 155. Police also discovered a bench warrant for
the defendant in New York City, where local police eventually apprehended
him. Id.
In Commonwealth v. Gratkowski, 430 A.2d 998 (Pa. Super. 1981),
police checked the defendant’s last known address, maintained contact with
employees at the defendant’s most recent place of business, and checked
with other police departments. Id. at 1000. The defendant argued police
could have searched for the defendant using records of the Department of
Motor Vehicles, Bureau of Employment Security, or his bank account. Id.
We concluded the Commonwealth established due diligence by a
preponderance of the evidence:
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.
Id. Due diligence requires only reasonable efforts, not the exhaustion of
every potential method of locating a defendant. Id. at 1001.
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Here, the Commonwealth produced the testimony of Detective Joseph
Jenkins. Detective Jenkins testified he conducted a check of police records
and learned Appellant was wanted for a probation violation in Philadelphia.
N.T. Hearing, 6/7/10, at 13. The records search also revealed an address
for Appellant in Chester County. Id. at 14. A search of the Bureau of Motor
Vehicle records revealed no record of Appellant having a driver’s license. Id.
at 15, 22. Detective Jenkins entered Appellant’s arrest warrant into the
PCIC and NCIC databases. Id. at 17. Detective Jenkins also obtained the
address of Appellant’s mother in Chester County from L.S. Id. at 18.
Detective Jenkins alerted five police stations in Chester County of the
outstanding arrest warrant for Appellant. Id. at 19-20, 23. Detective
Jenkins also enlisted the aid of the United States Marshalls. Id. at 25-26.
Finally, Detective Jenkins maintained contact with the victim’s family. Id. at
26.
Appellant faults Detective Jenkins for failing to visit either of the
Chester County addresses, for failing to contact Appellant’s mother, and for
failing to check for records with utility companies and state and federal
taxing authorities. Appellant’s Brief at 18. Appellant also faults Detective
Jenkins for insufficient follow up with the Chester County police.
Based on the record and the applicable law, we conclude the trial court
acted within its discretion in finding the Commonwealth proved by a
preponderance of the evidence that it exercised diligence in apprehending
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Appellant. The evidence, read in a light most favorable to the
Commonwealth pursuant to our standard of review, plainly evinces a diligent
search for Appellant. Bradford, 46 A.3d at 70. Detective Jenkins’s search
was at least as diligent as the sufficiently diligent searches described in our
opinions in Ingram, Newman, and Gratkowski. The law affords police
officers such as Detective Jenkins discretion to determine which avenues of
discretion will be fruitful. Detective Jenkins was under no obligation to visit
the Chester County addresses if he did not believe he would find Appellant
there. Moreover, the Chester County addresses are outside of Detective
Jenkins’ jurisdiction. Similarly, Detective Jenkins was not required to search
tax and utility records. Appellant offers no explanation as to how those
searches would have helped locate Appellant. In summary, Appellant would
have us force the Commonwealth to exhaust every conceivable means of
locating Appellant, but applicable case law holds that an exhaustive search is
unnecessary.
Appellant is willing, with minor exceptions, to assume “arguendo” that
the remainder of the delay attributable to the defense and to court
congestion is excludable. Appellant’s Brief at 22. He argues only that the
delay attributable to the continuances on March 5, 2012 and April 13, 2012
are chargeable to the Commonwealth because the Commonwealth was not
prepared for trial on those dates. The record, summarized above, fails to
support Appellant’s argument, inasmuch as Judge Mazzola was unavailable
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on both of those dates. N.T. Hearing, 8/8/13, at 12-13. Judicial delay, as
was the case here, is not attributable to the Commonwealth.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).
Concerning the B.P. prosecution, Appellant offers only several
paragraphs of argument unsupported by legal authority in his Brief.
Appellant’s Brief at 23-24. This deficiency is of no moment, as the
procedural history pertaining to the defense and judicial delay is precisely
the same in both cases. The trial court consolidated the L.S. and B.P.
matters by order of March 5, 2012. Prior to that order, however, the cases
were consistently listed together and the same attorney represented
Appellant in both cases. The only distinction between the two cases is that
our analysis of the delay between the date of the L.S. complaint and
Appellant’s eventual arrest is not pertinent, as the B.P. prosecution began
with Appellant’s arrest and the concomitant complaint filed the same day
Appellant completed his assault of B.P. As such, the trial court acted within
its discretion in denying Appellant’s Rule 600 motion in the B.P. prosecution.
For all of the foregoing reasons, we reject Appellant’s arguments on
appeal and affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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