Com. v. Ealy v. Jr.

• Court: Superior Court of Pennsylvania
• Decided: October 28, 2016
• Docket: 1925 MDA 2015
• Status: Unpublished

Opinion

J-S39015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

VERNON LEROY EALY, JR.

Appellant No. 1925 MDA 2015

Appeal from the PCRA Order Entered October 9, 2015 In the Court of Common Pleas of Franklin County Criminal Division at Nos: CP-28-CR-0000747-2013, and CP-28-CR- 0000748-2013

BEFORE: STABILE, PLATT,* and STRASSBURGER,* JJ.

MEMORANDUM BY STABILE, J.: FILED OCTOBER 28, 2016

Appellant Vernon Leroy Ealy, Jr. appeals from the October 9, 2015

order of the Court of Common Pleas of Franklin County (“PCRA court”),

which denied his request for collateral relief under the Post Conviction Relief

Act1 (“PCRA”). We affirm.

On August 31, 2010, the Chambersburg Police Department filed two

criminal complaints against Appellant.2 Both complaints charged Appellant

with one count of Manufacture, Delivery, or Possession with Intent to Deliver

____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 42 Pa.C.S.A. §§ 9541-46. 2 Unless otherwise specified, these facts come from the PCRA court’s October 9, 2015 opinion. J-S39015-16

and one count of Criminal Use of Communication Facility. 3 On the same

date it filed the complaints, Chambersburg Police received an arrest warrant

for the two cases.

The first attempt to serve the warrant took place on September 2,

2010, when Sergeant Rosenberry of the Chambersburg Police Department

visited Appellant’s last known address.4 N.T., PCRA Hearing, 8/5/2015, at

43-44. Appellant, however, was not present. Instead, Sergeant Rosenberry

spoke with Appellant’s mother who informed him that Appellant no longer

lived there and had moved to “New York or New Jersey.” Id. at 44.

Sergeant Rosenberry then provided her with his business card and left. Id.

Later that same day, Sergeant Rosenberry received a phone call from

Appellant. Appellant asked Sergeant Rosenberry why he had spoken with

his mother, whereupon Rosenberry informed Appellant of the warrant and

the need to return to Pennsylvania. Appellant did not turn himself in. N.T.,

PCRA Hearing, 8/5/2015, at 45.

Efforts to locate and apprehend Appellant continued after September

2, 2010.5 In February of 2011, Officer Jones again checked Appellant’s ____________________________________________

3 35 Pa.C.S.A. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively. 4 As of September 2, 2010, Appellant’s last known address was 436 South Main Street in Chambersburg, Pennsylvania. N.T., PCRA Hearing, 8/5/2015, at 44. 5 Chambersburg Police kept track of their efforts to locate Appellant by using an attempted warrant service log. N.T., PCRA Hearing, 8/5/2015, at 45. The log in this case had more entries than usual. Id. at 56.

-2- J-S39015-16

Chambersburg address. On February 4, 2011, two other officers found

information on Facebook indicating that Appellant was attending the Anthem

Institute in New Jersey. Acting on this lead, the officers contacted the

Hillside Police Department in New Jersey and supplied them with Appellant’s

National Crime Information Center (“NCIC”) information. Later, in February

of 2012, Officer Leisher received notification that Appellant would be in the

Chambersburg area. In response, he went to visit Appellant’s mother at her

address on South Main Street.6 Nonetheless, Appellant continued to elude

capture.

Officers also availed themselves of other tools to determine Appellant’s

whereabouts. Sergeant Rosenberry, for his part, would occasionally use an

internet database to check for addresses associated with Appellant. N.T.,

PCRA Hearing, 8/5/2015, at 46. During one such search, Sergeant

Rosenberry noticed that Appellant’s address had changed in March of 2013.

Id. at 46-47. Following normal protocol for the situation, Sergeant

Rosenberry called the Orange Police Department in New Jersey and asked

that they check the new address.7 Id. 47, 49. The Orange Police

6 Sergeant Rosenberry testified that officers visited Appellant’s mother on at least three occasions. N.T., PCRA Hearing, 8/5/2015, at 48. 7 According to the attempted warrant service log, various officers had contacted law enforcement in New Jersey three times prior to Sergeant Rosenberry’s call to the Orange Police Department. Id. at 54.

-3- J-S39015-16

Department thereafter apprehended Appellant on March 13, 2013. Id. at

54.

On March 10, 2014, Appellant entered a guilty plea to both counts of

Manufacture, Delivery, or Possession with Intent to Deliver. The trial court

immediately sentenced him to twenty to sixty months’ incarceration on each

count. The court ordered the sentences to run concurrently and that

Appellant receive credit for time served. Appellant thereafter filed a notice

of appeal, which he withdrew on May 6, 2014. He then filed the present

PCRA petition on June 30, 2014. The PCRA court denied Appellant’s petition

on October 9, 2015 and this timely appeal followed.

The single issue on appeal is whether the PCRA court properly

determined that the Commonwealth exercised due diligence in locating and

apprehending Appellant. See Appellant’s Brief at 5. For such an inquiry,

our standard of review is whether the PCRA court’s findings are free of legal

error and supported by the record. Commonwealth v. Martin, 5 A.3d 177,

182 (Pa. 2010) (quoting Commonwealth v. Abu-Jamal, 833 A.2d 719,

723 (Pa. 2003)). Thus, “[t]he PCRA court’s factual determinations are

entitled to deference, but its legal determinations are subject to our plenary

review.” Commonwealth v. Ghisoiu, 63 A.3d 1272, 1274 (Pa. Super.

2013) (quotation omitted).

After careful review of the record, and the relevant case law, we

conclude that the PCRA court accurately and thoroughly addressed the issue

on appeal. See PCRA Court Opinion, 10/8/15, at 6-14; PCRA Court’s Rule

-4- J-S39015-16

1925(a) Opinion, 12/7/15. Accordingly, we affirm the PCRA court’s October

9, 2015 order denying Appellant’s request for collateral relief. We further

direct that a copy of the PCRA court’s October 9, 2015 opinion and

December 7, 2015 Rule 1925(a) opinion be attached to any future filings in

this case.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/28/2016

-5- •• • Circulated 07/26/2016 03:17 PM . ' ) J

Filed DEC 07 2015 ~~.~--:::::-~~~~~- ~ ~;_ ---~ ~ ~ Clerk

IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL DISTRICT OF PENNSYLVANIA-FRAN.KLIN COUNTY BRANCH

Commonwealth of Pennsylvania Criminal Action V- v No. 747-2013; 48-2013 v. Post-Conviction Collateral Relief Vernon L. Ealy, Jr., Defendant JUDGE JEREMIAH D. ZOOK

ORDER

Now this 7th day of December, 2015, the Clerk of Courts of Franklin County is directed to transmit the foregoing Opinion Pursuant to Pa.R.A.P. 1925(a) to the Prothonotary of the Superior Court of Pennsylvania pursuant to Pa.R.A.P. 1931(c).

The Clerk of Courts shall give notice to: Matthew A. Sembach, Esq., Attorney for Defendant Franklin County District Attorney's Office Defendant, Vernon L. Ealy, Jr.,1 appeals from the Order of

Court entered on October 8, 2015.2 The Defendant filed a Notice

of Appeal on October 30, 2015. On November 5, 2015, this Court

entered an Order directing the Defendant to file within 21 days a

concise statement of matters complained of on appeal. The

Defendant filed a concise statement on November 10, 20153 raising

one issue, whether the Court erred by concluding that trial counsel

1 Defendant is an individual represented by Matthew A. Sembach, Esq .. 2 Denying the Defendant's Amended Petition for Post-Conviction Collateral Relief 3 The Court notes that attached to the concise statement was a certificate of service stating that the Defendant served a copy of the statement on the Court; however, the Court never received a copy. Commonwealth v. Ealy CR ... o, 747-2013; CR 748-2013

Opinion Pursuant to PA.R.A.P. 1925(a) Page2

had a reasonable basis for not filing a motion to dismiss pursuant

to Pa.R.Crim.P. 600.

The reasons for the Order appealed from in this case were

adequately set forth in this Court's Opinion and Order of Court filed

of record on October 8, 2015. A copy is attached for ease of review.

It is respectfully requested that the Superior Court affirm in all

respects.

The Clerk of Courts shall give notice to: Matthew A. Sembach, Esq., Attorney for Defendant Franklin County District Attorney's Office Filed OCT ff) 8 2015

The above captioned matter is before the court upon Defendant's

Amended Petition for Post Conviction Relief Pursuant to the Post Conviction Relief

Act (hereinafter PCRA Petition) filed on February 11, 2015. The Court held a

hearing on the PCRA Petition on August 3, 2015, during which Defendant was

represented by Shane B. Kope, Esq .. 1 The Court heard testimony from Joseph

Labbate, Todd M. Sponseller, Esq., Defendant, and Sergeant Anthony

Rosenberry of the Chambersburg Police Department. The matter is now ready

for decision.

1 The Court notes that Matthew A. Sembach, Esq., was appointed as counsel for the Defendant; however, Shane B. Kope, Esq., appeared for the hearing in his stead. PROCEDURAL HISTORY

On August 31, 2010, the Chambersburg Police Department charged the

Defendant by two separate criminal complaints with two counts of

Manufacture, Delivery, or Possession with Intent to Manufacture or Deliver.?

and two counts of Criminal Use of Communication Facility.3 An arrest warrant

was issued in both cases the same date.

On April 3, 2013, Defendant was arrested in New Jersey. Bail was set on

the same date; it was modified on April 16, 2013. On June 20, 2013, the

Commonwealth filed an Information. in the above captioned dockets. On June

26, 2013, Defendant appeared and waived formal arraignment.

On August 27, 2013, Defendant appeared4 for call of the list and made

an application for continuance which the Courts denied. On August 29, 2013,

Defendant filed a Motion for Continuance, which the Court" granted and

continued the matter to November 12, 2013. The time between August 29,

2013, and November 12, 2013, was excluded from the period of

commencement of trial under Pa.R.Crim.P. 600.

On August 29, 2013, Defendant, through counsel, filed an Omnibus Pre-

Trial Motion. That same date, the Court granted Deborah K. Hoff, Esq., leave to

withdraw as privately retained counsel, and appointed Michael J. Toms, Esq.,

the Franklin County Public Defender, to represent Defendant. On September

2 35 Pa.C.S. § 780-l 13(a)(30). 3 18 Pa.C.S. § 7512(a). 4 At this time the Defendant was represented by Deborah K. Hoff, Esq .. s By the Honorable Shawn D. Meyers in CR 747-2013 and the Honorable Douglas W. Herman in CR 748-2013. 6 By the Honorable Douglas W. Herman in both dockets.

2 10, 2013, Attorney Toms filed a Motion for Appointment of Counsel Because of

Conflict of Interest.7 By Order dated September 9, 2013,s the Court granted

counsel's Motion and appointed Todd M. Sponseller, Esq., as counsel for

Defendant.

On September 9, 2013,9 the Court, upon review of Defendant's Omnibus

Motion,10 entered an Order directing the Commonwealth to respond to the

Defendant's Motion within 14 days and scheduling the matter for a hearing on

December 16, 2013. On September 27, 2013, the Commonwealth filed an

Answer to Pre-Trial Omnibus Motion.

On October 10, 2013, Defendant filed a Motion for Reduction of Bail. On

October 14, 2013,11 the Court-? entered an Order directing the Commonwealth

to file a response within ten days and scheduled a hearing on Defendant's

Motionfor Reduction of Bail on November 20, 2013.

On October 31, 2013, Defendant filed a Motion for Continuance, which

the Court granted on the same date, continuing the matter to January 13,

2014, and excluding the period of time between October 31, 2013 and January

13, 2014, for the period of commencement of trial pursuant to Pa.R.Crim.P.

600. On December 13, 2013, Defendant filed a Motionfor Continuance, which

the Court granted on the same date continuing the matter to March 10, 2014,

7 This Motion was filed after the Court granted the Motion. B Filed of record on September 10, 2013. 9 Filed of record on September 11, 2013. 10 Filed of record on August 29, 2013. 11 Filed of record on October 16, 2013. 12 This Order and all orders issued between October 14, 2013, and March 23, 2015, were issued by the Honorable Douglas W. Herman.

3 and excluding the period of time between December 13, 2013, and March 10,

2014, for purposes of Pa.R.Crim.P. 600.

On December 16, 2013, the Court convened for a hearing on the

Defendant's Omnibus Motion; the Court also granted Defendant an extension to

file a notice of alibi to February 15, 2014. On February 28, 2014, the

Commonwealth filed a Motion to Consolidate Cases for Trial in dockets CR 747-

2013 and CR 748-2013. The Court granted said Motion on March 5, 2014.

On March 3, 2014, the Court conducted a Pre-Trial Conference and

entered a Pre-Trial Order of Court. On March 10, 2014, Defendant pled guilty to

one count of Manufacture, Delivery, or Possession with Intent to Manufacture

or Deliver+' in both above captioned dockets. Defendant was sentenced the

same date to 20 months to 60 months on each count, to be served

concurrently, and with credit for time previously served from March 11, 2013,

to March 10, 2014.

On April 9, 2014, Defendant, through counsel, filed an Application for

Leave to Proceed In Forma Pauperis, Notice of Appeal, and Request for

Transcripts. Contemporaneously with said filings, Attorney Sponseller filed a

Petition for Leave of Court to Withdraw as Counsel. On April 15, 2014, the

Court entered an Order directing Defendant to file a concise statement of

matters complained of on appeal pursuant to Pa.R.A.P. l 925(b). On April 16,

2014, the Court granted leave to Attorney Sponseller to withdraw as counsel

and appointed the law firm of Kulla, Barkdoll, and Stewart, to represent

13 35 Pa.C.S. § 780-l 13(a)(30).

4 Defendant. On May 6, 2014, Defendant, through counsel, withdrew his Notice

of Appeal.

On June 30, 2014, Defendant filed a pro se Motion for Post-Conviction

Collateral Relief On July 14, 2014, the Court entered an Order granting

Defendant in forma pauperis status, appointing Brett Beynon, Esq., as counsel

for the Defendant, granting Defendant leave to file an amended petition within

thirty days, and granting the Commonwealth thirty days to file a response. On

October 21, 2014, Attorney Beynon filed a Motion to Withdraw as Courisel+"

On October 30, 2014, the Court granted Attorney Beynon's Motion to Withdraw

as Counsel and appointed Matthew A. Sembach, Esq., as counsel for

On February 12, 2015, Defendant, through counsel, filed an Amended

Petition for Post-Conviction Collateral Relief On March 24, 2015, the Court=

scheduled an evidentiary hearing on the PCRA Petition for May 1, 2015, at 2:30

p.m.. On April 22, 2015, the Commonwealth filed a Motion to Continue

Evidentiary Hearing. On April 23, 2015, the Court granted said Motion and

continued the matter to May 22, 2015, at 9:00 a.m .. The Commonwealth filed

a Motion to Continue on May 11, 2015, which the Court granted on May 13,

2015,16 setting the matter for hearing on June 5, 2015, at 9:00 a.m ..

14 It is unclear to the Court why this Petition was filed more than four months after counsel was appointed and significantly beyond the deadline for filing of an amended petition. 15 This Order and all subsequent orders were entered by the Undersigned. 16 Filed of record on May 14, 2015.

5 On June 1, 2015, Defendant filed a Motion for Continuance. The Court

granted said Motion on June 2, 2015,17 setting the matter for hearing on

August 3, 2015 at 9:00 a.m .. The Court conducted the evidentia:ry hearing as

scheduled on August 3, 2015, during which the Court heard testimony from

Joseph Labbate, Todd M. Sponseller, Esq., Defendant, and Sergeant Anthony

Rosenberry of the Chambersburg Police Department. At the conclusion of the

hearing, the Court entered an Order-'' directing the Commonwealth to file a

written argument not later than August 21, 2015, and Defendant to file a

response not later than September 11, 2015. The Commonwealth timely filed

its Memorandum of Law on August 20, 2015. Defendant timely submitted a

Brief to the Court in chambers on September 2, 2015; however, the Brief was

not filed of record. By Order dated September 30, 2015, the Court directed the

Clerk of Courts to file Defendant's Brief of record. This matter is now ready for

decision.

DISCUSSION

A. The Post Conviction Relief Act.

The Post Conviction Relief Act (PCRA)was enacted to provide individuals

who are convicted of crimes for which they are innocent, or those serving illegal

sentences, with a means to obtain collateral relief. See 42 Pa. C.S.A. § 9543.

To be eligible for relief under the statute, a petitioner must prove by a

preponderance of the evidence that he is currently serving a sentence and that

the issues raised in his petition have not been previously litigated or waived.

11 Filed of record on June 3, 2015. is Filed of record on August 5, 2015.

6 42 Pa. C.S.A. § 9543 (a)(l). The petitioner must also prove by a preponderance

of the evidence that his conviction resulted from a circumstance enumerated in

42 Pa. C.S. § 9543(a)(2), and that "the failure to litigate the issue prior to or

during trial, or during unitary review or direct appeal" was not the result of a

"rational, strategic or tactical decision by counsel." Id.§ 9543(a)(4).

B. Claims of Ineffective Assistance of Counsel.

The Defendant alleges that trial counsel was ineffective. Under the

PCRA, a Petitioner may obtain relief if they can prove by a preponderance of the

evidence their conviction or sentence resulted from ineffective assistance of

counsel. 42 Pa. C.S.A. § 9543(a)(2)(ii). "It is well established that counsel is

presumed effective, and to rebut that presumption, the PCRA petitioner must

demonstrate that counsel's performance was deficient and that such deficiency

prejudiced him." Commonwealth v. Johnson, 51 A.3d 237, 243 (Pa. Super.

2012).

To succeed on a claim of ineffectiveness of counsel, the petitioner must

prove 1) the underlying legal issue has arguable merit; 2) counsel's actions

lacked an objectively reasonable basis, and 3) actual prejudice resulted from

counsel's act or omission. See Commonwealth v. Tedford, 960 A.2d 1, 12 (Pa.

2008) (citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987)). All three

prongs of the ineffectiveness test must be proven or counsel's assistance is

deemed constitutionally effective. See Commonwealth v. Harvey, 812 A.2d

1190, 1196 (Pa. 2002). Pursuant to the above standards, this Court now

analyzes the sole issue raised by the Defendant.

7 C. Issue Raised - Rule 600 Violation.

Defendant asserts that courisel-? was ineffective for failing to file a

motion to dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600

(the "speedy trial" rule). Rule 600 provides that "[t]rial 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." Pa.R.Crim.P. 600(A)(2)(a).

The Complaint was issued on August 31, 2010, and the Defendant plead guilty

in both dockets on March 3, 2014. Defendant asserts that his speedy trial date

should have been August 31, 2011, and that the period of delay between

August 31, 2010, and March 10, 2014, was caused by the Commonwealth as

they failed to exercise due diligence in bringing the case to trial.

The mechanical run time between August 31, 2010, and March 10, 2014,

is 1,287 days. The Court previously granted Defense continuances excluding

the time period between August 29, 2013, to November 12, 2013,20 to January

13, 2014,21 and finally to March 3, 2014.22 There is no dispute that these

periods fall under Pa.R.Crim.P. 600(C)(2) and are excluded for purposes of

Pa.R.Crim.P. 600(A)(2). These continuance requests by the Defendant result in

the exclusion of 187 days from the Pa.R.Crim.P. 600 calculation.

19 The Court notes that the Defendant was represented by no less than three attorneys before the Trial Court. His PCRA is directed at Attorney Sponseller alone; as such, the Court's references to "counsel" hereafter refer to Attorney Sponseller. 20 By Order dated August 29, 2013.

21 By Order dated October 31, 2013. This Order excluded the time period between October 31, 2013, and January 31, 2013. 22 By Order dated December 13, 2013. This Order excluded the time period between December 13, 2013, and March 10, 2014.

8 The pnmary Issue raised In the PCRA Petition is whether the

Commonwealth exercised due diligence in attempting to apprehend the

Defendant during the 1,100 days between August 31, 2010,23 and August 29,

2013.24 Pursuant to Pa.R.Crim.P. 600(C)(l) "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. To determine whether the

Commonwealth exercised due diligence:

the test is Not a venture into hindsight reasoning as to whether, if certain individuals had been contacted, or 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.

Comm. v. Hinton, 409 A.2d 54, 57 - 58 (Pa.Super. 1979) (capitalization m

original).

Defendant's claim is without merit as the Commonwealth exercised due

diligence in attempting to serve the arrest warrant on the Defendant. Sgt.

Rosenberry testified that on September 2, 2010, he was part of a Warrant Task

Force with the United States Marshals Office and attempted to serve the

warrant. Sgt. Rosenberry made contact with Defendant's mother at 436 Main

Street, Chambersburg, Pennsylvania, which was the Defendant's last known

address. Sgt. Rosenberry informed Defendant's Mother why he was there, that

23 The date the Complaint was filed. 24 The date the Defendant first requested a continuance.

9 he had a warrant for the Defendant's arrest, and gave her his business card.

Defendant's mother informed the Sergeant that Defendant was residing in the

New York or New Jersey area. That same date, Sergeant Rosenberry received a

telephone call from Defendant-> wherein the Defendant inquired into why Sgt.

Rosenberry was at his mother's residence. Sgt. Rosenberry informed

Defendant about the warrant and that he needed to come in; Defendant asked

Sgt. Rosenberry why the warrant was issued.

The Commonwealth introduced into evidence Commonwealth's Exhibit 1

which consisted of an Attempted WmTant Service Log prepared by numerous

officers. Several officers made notes on the warrant service logs, and Sgt.

Rosenberry noted that the log in this case was significantly more detailed and

had more entries than a standard attempted warrant service log. On February

3, 2011, Officer Jones checked Def end ant's last known address and did not get

an answer. On February 4, 2011, Defendant was found on Facebook where it

appeared he was attending the Anthem Institute in New Jersey as a full time

student. Officers contacted the Hillside Police Department in New Jersey and

sent Defendant's National Crime Information Center (NCIC) information to the

Hillside Police Department.

In February 2012, Officer Leisher received information that Defendant

would be in the Chambersburg area. On this information, Officer Leisher

visited Defendant's mother to ask about Defendant. Defendant's mother was

contacted at least three times concerning Defendant's whereabouts. Sergeant

zs Sergeant Rosenberry testified that the phone call he received came from a phone number believed to be owned by the Defendant.

10 Rosenberry testified that when he receives an address where a wanted

defendant is residing out of state, the standard practice is to contact the local

police department to have them serve the warrant.

In March 2013, Defendant was located in New Jersey through a TL026

search. Sergeant Rosenberry contacted law enforcement in New Jersey and

requested they respond to the address. Defendant was arrested in New Jersey

by the Orange Police Department.

For purposes of Rule 600:

excusable delay occurs where the delay is caused by 'circumstances beyond the Commonwealth's control and despite its due diligence.' 'Due diligence is a fact-specific concept that must be determined on a case-by-case basis. Due diligence does not require perfect vigilance and punctilious care, but rather a showing by the Commonwealth that a reasonable effort has been put forth.'

Comm. v. Roles, 116 A.3d 122, 125 (Pa.Super. 2015) (internal citations

omitted). The Court heard credible testimony from Sergeant Rosenberry that

the Attempted Wm,ant Service Log27 had significantly more entries than the

typical case. The Court heard testimony from James Labbate, a private

investigator from Spartan Detective Agency in Union New Jersey. Mr. Labbate

testified that he was able to conduct a reverse skip trace28 on Defendant's

whereabouts from August 2010 to April 3, 2013; the results of this search

listed numerous addresses that appear to be Defendant's addresses.s? This

report lists an address for Defendant from January 1, 2006 to February 15,

2015, of 436 S. Main St., Chambersburg, PA 17201. This address was checked

26 TLO is a free law enforcement database. 21 See Commonwealth Ex. l. zs See Defendant's Ex. 1. 29 The Defendant testified that these were indeed the addresses where he was residing.

11 numerous times by police, as it was the address where Defendant's Mother

resided. Additionally, the reverse skip trace>" and the Attempted Warrant

Service Log31 contain an address of 1111 Salem Ave., Hillside, N.J.; Sgt.

Rosenberry testified that the Hillside Police Department was contacted to

attempt service of the arrest warrants.

While the Defendant argues that the Commonwealth did not put forth a

reasonable effort because there were numerous things they could have done to

locate the Defendant, that is not the standard the Court must apply to the

efforts of the Commonwealth. "The matter of availability and due diligence

must be judged by what Was done by the authorities rather than what was not

done." Commonwealth v. Hinton, 409 A.2d 54, 57 - 58 (Pa.Super.

1979)(capitalization in original). In Commonwealth v. Mitchell, the police

department had an address, which was checked multiple times, and circulated

a photograph of the defendant. Commonwealth v. Mitchell, 372 A.2d 826, 832

(Pa. 1977). In Mitchell, the defendant argued that because he received public

assistance, the police should have been able to arrest him on the first day he

could pick up a check following the warrant being issued. Id. However, the

Court in Mitchell found that there was nothing in the record indicating the

police knew the defendant was obtaining public assistance, nor that he became

employed after the issuance of the warrant, as the police had no direct

connection with the employer. Id.

30 See Defendant's Ex. 1. 31 See Commonwealth Ex. 1.

12 Defendant in this case argues that he should have been easily located

because he changed his address with the New Jersey Department of Motor

Vehicles, attended the Jersey Tractor Trailer School, graduated from the

Anthem Institute, applied for federal help through the FAFSA program, applied

for Social Security Benefits, received health benefits through the State of New

Jersey, received food stamps and cash payment through the SNAP program,

and received job placement services through the New Jersey Department of

Labor and Industry. See Defendant's Ex. 2 - 6. As was in the case in Mitchell,

there is nothing in the record to show that the Commonwealth knew that

Defendant was receiving public assistance or where he was employed after the

warrant was issued. Furthermore, after receiving information of Defendant's

attendance at the Anthem Institute in New Jersey, the Commonwealth

contacted the Anthem Institute in New Jersey in an attempt to locate

Defendant. "It is not the function of our courts to second guess the methods

used by police to locate arrested persons." Commonwealth v. Mitchell, 372 A.2d

826, 832 (Pa. 1977).

Because the Commonwealth exercised reasonable efforts in attempting to

locate Defendant, the time between the filing of the Criminal Complaint on

August 31, 2010, and the date Defendant was arrested32 would be excluded in

the calculation of time pursuant to Pa.R.Crim.P. 600(c). Further, because

there is no dispute that the time periods between August 29, 2013, and March

3, 2014, were previously excluded pursuant to Pa.R.Crim.P. 600, the result is a

32 April 3, 2013.

13 total of 1, 133 days would have been excluded for purposes of calculating the

Defendant's right to a speedy trial. As Defendant pled guilty on March 10,

2014, the total number of non-excludable days between the filing of the

Criminal Complaint and the time the Defendant entered a plea of guilty is 154

days; therefore, there was no violation of Pa.R.Crim.P. 600.

Based upon the evidence presented, it is clear to the Court that

Defendant's argument lacks merit as the Commonwealth would have

successfully met their burden by a preponderance of the evidence that they

acted with due diligence to bring the matter to trial. Therefore, trial counsel

was not ineffective for failing to file a motion to dismiss pursuant to

Pa.R.Crim.P. 600. See Commonwealth v. McBee, 520 A.2d 10, 14 (Pa. 1986).

Because the Court finds that Defendant's argument lacks merit, the Court will

not address the remaining prongs of the ineffectiveness of counsel analysis.

See Commonwealth v. Harvey, 812 A.2d 1190, 1196 (Pa. 2002).

CONCLUSION

This Court's review of the record and survey of the law reveals that

Defendant is not entitled to relief under the PCRA. Trial counsel was not

ineffective for failing to file a motion to dismiss pursuant to Pa.R.Crim.P. 600

as such motion would have been meritless. Consequently, the claims of

Defendant are without merit and the instant PCRA Petition will be denied. An

appropriate order follows.