J-S19020-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
RAMON GONZALES
Appellee No. 2952 EDA 2014
Appeal from the Order entered September 19, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0002728-2014
BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED MAY 13, 2016
The Commonwealth appeals from the trial court’s September 19, 2014
order dismissing all charges against Appellee, Ramon Gonzales, under
Pa.R.Crim.P. 600. We reverse and remand.
The trial court summarized the underlying facts:
On October 16, 2012, Detective Martin Sheeron was placed
in charge of preparing an arrest warrant approved for [Appellee].
The arrest warrant was approved on October 16, 2012,[1] and
Detective Sheeron executed the arrest warrant, along with a
search warrant, on [Appellee’s] residence at 115 East Lippincott
Street. Detective Sheeron testified the address of 115 Lippincott
was found in either the DMV database or criminal history
database. Detective Sheeron and three other police officers
knocked at the door of 115 East Lippincott Street, but there was
no reply. The officers then removed the door and searched the
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1
The certified record contains a criminal complaint dated October 16, 2012,
the same day the warrant for Appellee’s arrest was approved.
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house but failed to find [Appellee] or any evidence they were
seeking. After the house was searched, people sitting on their
porch a couple houses down told the officers the house belonged
to someone’s cousin, but did not specify whom. The police
officers attempted to speak to them from the front door, but did
not walk over to them. Detective Sheeron then entered
[Appellee’s] information into NCIC and PCIC systems as a
warrant, so if [Appellee] was stopped by another officer, he
would be arrested on the arrest warrant. Detective Sheeron
then prepared a packet for the warrant unit containing:
[Appellee’s] information, photos, a copy of the warrant, the NCIC
entry, affidavit, and other related documents.
The warrant unit unsuccessfully attempted to execute the
warrant at 115 East Lippincott Street seven times on: October
17, 2012, October 31, 2012, November 12, 2012, May 2, 2012
[sic], August 15, 2013, December 13, 2013, and December 23,
2013. The warrant, [a]s entered into NCIC, stated, ‘Frequents
the area of 3000 Lee, 3100 Lee, 100 East Clearfield, and 100
East Lippincott.’ Detective Sheeron testified he never specifically
went to the city blocks mentioned in the warrant to search for
[Appellee], but kept his eyes peeled for him when in those areas
for other police work. Detective Sheeron further testified he did
not search for [Appellee’s] address using: the gas company
records, social security database for addresses, the phone
company, or Facebook. [Appellee] was arrested on February 23,
2014, at 940 East Russell Street.
Trial Court Opinion, 6/10/2015, at 1-2 (record citations omitted).
On July, 28, 2014, Appellee filed a motion to dismiss charges2 under
Pa.R.Crim.P. 600. The trial court conducted a hearing on September 19,
2014. At the conclusion of that hearing, the trial court entered the order on
appeal dismissing all charges. The sole issue on appeal is whether the trial
court erred in finding the time between the Commonwealth’s complaint and
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2
The Commonwealth has charged Appellant with attempted murder,
aggravated assault, and unlawful possession of a firearm.
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Appellee’s arrest is chargeable to the Commonwealth for purposes of
Appellant’s Rule 600 speedy trial motion.
In this case, Rule 600 required the Commonwealth to commence trial
within 365 days of the date of the criminal complaint. Pa.R.Crim.P.
600(A)(2)(a). The 365-day period includes “periods of delay at any stage of
the proceedings caused by the Commonwealth when the Commonwealth has
failed to exercise due diligence[.]” Pa.R.Crim.P. 600(C)(1). The
Commonwealth filed its complaint on October 16, 2012. Appellee filed his
Rule 600 motion 650 days later, on July 28, 2014. As explained above, the
Commonwealth did not apprehend Appellee until 496 days after it filed the
Complaint. If the 496 days are chargeable to the Commonwealth under Rule
600, we must affirm the trial court’s order. If they are not, we must
reverse.
In evaluating Rule [600] issues, our standard of review of
a trial court’s decision is whether the trial court abused its
discretion. Judicial discretion requires action in conformity with
law, upon facts and circumstances judicially before the court,
after hearing and due consideration. 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, as shown by the evidence or the record,
discretion is abused.
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
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[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.
So long as there has been no misconduct on the part of
the Commonwealth in an effort to evade the fundamental speedy
trial rights of an accused, Rule [600] must be construed in a
manner consistent with society’s right to punish and deter crime.
In considering [these] matters ..., courts must carefully factor
into the ultimate equation not only the prerogatives of the
individual accused, but the collective right of the community to
vigorous law enforcement as well.
Commonwealth v. Ramos, 936 A.2d 1097, 1100 (Pa. Super. 2007) (en
banc).
The Commonwealth bears the burden of proving, by a preponderance
of the evidence, that it acted with reasonable diligence in attempting to
apprehend Appellee. 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[.]
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Id. Due diligence “does not demand perfect vigilance and punctilious care,
but rather a reasonable effort.” Commonwealth v. Laurie, 483 A.2d 890,
892 (Pa. Super. 1984). “[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.
In Laurie, the trial court dismissed charges against the defendant,
noting that police made only one phone call to the defendant’s last known
address. Laurie, 483 A.2d at 892. This Court reversed, noting that police
spoke to the defendant’s family members, checked for information at local
utilities companies, and placed an advertisement in a local newspaper. Id.
at 891. We 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.
Id. at 892 (quoting Commonwealth v. Mitchell, 372 A.2d 826, 832 (Pa.
Super. 1977)). That police could have done more was not sufficient reason
to grant the defendant’s speedy trial motion.3 Id. Police need not “exhaust
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3
At the time of the Laurie decision, Pa.R.Crim.P. 1100 governed speedy
trials. Rule 1100 has since been amended several times and renumbered
(Footnote Continued Next Page)
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every conceivable method of locating a defendant.” Id. “[T]he focus of our
inquiring is on what was done, not with what should have been done.” Id.
The Commonwealth also relies on Commonwealth v. Gratkowski,
430 A.3d 998 (Pa. Super. 1981). In Gratkowski, the defendant claimed he
was living and working in Erie County in between the filing of the complaint
against him and his arrest, and that police could have located him through
Department of Motor Vehicles (“DMV”) records, the Bureau of Employment
Security, his local bank account, or the Restaurant Association. Id. at 1000.
The defendant also noted he had family in Erie and the police did not talk to
them. Id. The Commonwealth responded that Appellant left his last known
address three months prior to the complaint. Police spoke to the manager of
Appellant’s last known place of employment, who informed police that
Appellant moved “out west.” Id. Several police officers who knew the
defendant by sight kept a lookout for him while on patrol, and local police
contacted other police agencies. Id. This Court deemed police efforts
reasonable, and rejected the defendant’s argument that counsel was
ineffective for failing to file a speedy trial motion. Id. at 1001.
In Ingram, police learned from the defendant’s mother that he had no
intent to return to his last known address and thus only went to that location
once. Ingram, 591 A.2d at 737. Instead, they entered the defendant’s
_______________________
(Footnote Continued)
Rule 600. No substantive difference between the current and prior versions
of the rule has any bearing on this appeal.
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name into a national database and, during routine patrol, observed locations
where they had seen the defendant in the past. Id. The Ingram Court
deemed these efforts reasonable and declined to exercise “judicial
hindsight.” Id.
Appellee relies on Commonwealth v. Williamson, 409 A.2d 101 (Pa.
Super. 1979), in which this Court held that police failed to exercise
reasonable diligence during 22 days between the complaint and the
defendant’s arrest. During that time, police learned of another charge
against the defendant and his pending arraignment. Id. at 103. Rather
than attempt to locate the defendant immediately, they provided the
warrant to officers scheduled to appear on the date of the defendant’s
arraignment on the other charge. Id. Thus, the defendant was arrested at
an arraignment on an unrelated charge, 22 days after the complaint in
question. “After the police became aware that appellant was involved in
another pending criminal case [. . .] the means for ascertaining his
whereabouts were at hand.” Id. “Whether he was on bail or in jail, a
minimum investigation would have disclosed his whereabouts.” Id.
Likewise, Appellee relies on Commonwealth v. Collins, 404 A.2d 1320,
1322-23 (Pa. Super. 1979), in which this Court held police did not exercise
due diligence because they failed to coordinate with other police
departments, including the probation officers overseeing a probation
sentence the defendant was serving at the time. The defendant stated that
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his county probation officer and his state parole officer both knew his
whereabouts. Id. This Court described police efforts as follows:
A single unsuccessful visit to the homes of two relatives,
followed a month and one-half later by dropping one’s card at
the accused’s mother's residence with a request to be contacted
should the accused come calling, falls far short of due diligence.
The Commonwealth in fact made no effort until the end of April,
when Philadelphia police were finally contacted.
Id. at 1323.
Instantly, police visited Appellee’s last known address—115 East
Lippincott Street—eight times, including the initial attempt to execute the
arrest warrant and seven follow up attempts by the warrant division. N.T.
Hearing, 9/19/2014, at 8, 12, 18-19. Police located the address through
either DMV records or Appellee’s criminal history. Id. at 9, 16-17. The only
address on Appellee’s criminal extract was 115 East Lippincott. Id. at 25.
Police also entered the warrant into several statewide and national
databases, so that the warrant would be on record in the event another
police department stopped or arrested Appellee. Id. at 11. The databases
also reflected that Appellee was known to frequent the area of “3000 Lee,
3100 Lee, 100 East Clearfield, and 100 East Lippincott[.]” Id. at 15. The
investigating officer visited that location “numerous times” and looked for
Appellee when his other investigations brought him nearby. Id. at 16. The
officer did not run a Google search or search Facebook for information, nor
did he check welfare records, tax records, or utilities records. Id. at 17-18.
Ultimately, police apprehended Appellee at 940 East Russell Street. Id. at
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22. The record does not reveal the location of 940 East Russell Street in
relation to the locations police believed Appellee frequented.
To summarize, police attempted eight times to find Appellee at his last
known address. They also repeatedly watched the neighborhood Appellee
was known to frequent. Finally, police entered Appellee’s warrant in to
several databases so that he would be arrested if stopped in another
location. In Ingram, police repeatedly observed locations where they had
seen defendant in the past, and entered his warrant into databases. They
only visited the defendant’s last known address once, as they had reason to
believe he would not return. Ingram, 591 A.2d at 737. This Court deemed
the investigation reasonably diligent. Likewise, in Gratkowski, police spoke
to the defendant’s former manager, kept an eye out for him in his last
known neighborhood, and contacted other police departments. This Court
deemed the investigation reasonably diligent, despite the defendant’s
assertions that police could have found him through DMV records, bank
records, and/or employment records. The instant case is very similar,
therefore, to Ingram and Gratkowski.
In Collins and Williamson, on the other hand, the record contained
objective evidence of a lack of diligence. In Williamson, the defendant was
arrested, awaiting arraignment, and possibly in custody on another charge.
In Collins, the defendant was on probation on another charge and under the
supervision of county and state officers. Police in this cases took very little
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action and ignored readily available means of apprehending the defendant
sooner. Collins and Williamson did not rest on hindsight suggestions of
additional avenues of investigation.
In light of all of the foregoing, we are constrained to conclude that the
trial court misapplied the law in this case. The search for Appellee here was
similar to searches we have deemed reasonably diligent in other cases. The
availability of other means of potentially locating Appellee—tax records,
welfare records, and utilities company records—does not alter the result.
We have repeatedly held that police officers are entitled to deference in
choosing which means of locating a defendant will be the most effective.
Laurie, 483 A.2d at 892. Also, Rule 600 requires us to balance the
accused’s speedy trial rights against the need to protect society. Ramos,
936 A.2d at 1100. We conclude the trial court erred in granting Appellee’s
Rule 600 motion and dismissing all charges. We therefore reverse the trial
court’s order and remand for further proceedings.
Order reversed. Case remanded for further proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/2016
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