J-S65021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

JOSEPH JACKSON

Appellant No. 596 MDA 2018

Appeal from the Judgment of Sentence March 26, 2018

In the Court of Common Pleas of York County

Criminal Division at No: CP-67-CR-0004876-2016

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.: FILED JANUARY 09, 2019

Appellant, Joseph Jackson, appeals from the judgment of sentence 

imposed on March 26, 2018 in the Court of Common Pleas of York County. 

Appellant contends the trial court erred in calculating excludable time under 

Pa.R.Crim.P. 600(C)1 and, therefore, erred in denying his motion to dismiss 

____________________________________________

1 Rule 600(A) requires that a defendant be brought to trial within 365 days 

from the date on which the complaint is filed. Rule 600(C) provides, in 

relevant part, 

(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(A)(2)(a) and (C)(1).
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charges of possession with intent to deliver, 35 P.S. § 780-113. Upon review, 

we affirm.

Appellant’s trial was scheduled for January 9, 2018. Prior to jury 

selection, Appellant’s counsel filed a Rule 600 motion to dismiss. Testimony 

was taken from the affiant, Officer Michelle Miller, a York Police Officer who 

also works for the York County Drug Task Force. Officer Miller explained that 

Appellant was arrested on January 6, 2016 but charges were not immediately 

filed because Appellant initially agreed to cooperate with the Drug Task Force. 

Notes of Testimony (“N.T.”), 1/9/18, at 10-11. Charges were filed on March 

17, 2016 but Appellant was not located and apprehended until July 7, 2016. 

Id. at 11-14. While other delays in bringing Appellant to trial were attributable 

to Appellant and are not challenged on appeal, Appellant is challenging the 

exclusion of the period from March 17, 2016 until July 7, 2016 (112 days). If 

that 112-day period were included in the Rule 600 calculations, Appellant 

would be entitled to have the charges dismissed.

After hearing Officer Miller’s testimony and argument of counsel, the 

trial court determined the Commonwealth acted with due diligence in 

attempting to locate Appellant and bring him to trial. Therefore, the court 

denied Appellant’s motion to dismiss. The case proceeded to trial and the jury 

returned a guilty verdict. On March 26, 2018, the trial court sentenced 

Appellant to a term of three to six years in a state correctional institution, 
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consecutive to a sentence imposed in a separate case. This timely appeal 

followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents one issue for our consideration:

I. Whether the honorable court erred in denying Appellant’s 

motion to dismiss pursuant to Rule 600 of the Pennsylvania 

Rules of Criminal Procedure.

Appellant’s Brief at 4. 

In Commonwealth v. Bradford, 46 A.3d 693 (Pa. 2012), our Supreme 

Court explained: 

When reviewing a trial court’s decision in a Rule 600 case, an 

appellate court will reverse only if the trial court abused its 

discretion. See Commonwealth v. Selenski, 606 Pa. 51, 994 

A.2d 1083, 1087 (2010). “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.” Id. (internal citation omitted). 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. See id.

Id. at 700. Further, “[d]ue diligence is fact-specific, to be determined caseby-case; it does not require perfect vigilance and punctilious care, but merely 

a showing the Commonwealth has put forth a reasonable effort.” 

Commonwealth v. Sloan, 67 A.3d 1249, 1252 (Pa. Super. 2013) (quoting 

Bradford, 46 A.3d at 701-02).

In its order denying Appellant’s motion to dismiss, the trial court made 

the following observations:

We have taken th[e] testimony this afternoon from Officer Miller 

who indicated [Appellant] was initially arrested on the date of the 
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incident, January 6, 2016, that charges were not immediately filed 

because [Appellant] was going to cooperate with the Drug Task 

Force. When that did not occur, charges were filed on March 17, 

2016.

A warrant for his arrest was filed on the same date. He was 

entered into the NCIC database system and additionally [O]fficer 

Miller indicated that she tried to contact [Appellant] via the cell 

phone number that he had provided, that there were two to three 

attempts to contact him via that cell phone number and that she 

further went to his last known address on Madison Avenue to no 

avail. She was not aware of any employment [Appellant] was 

engaged in nor of any local relatives to contact him. She [] was

notified at the time [Appellant] was apprehended on July 7th, 

2016. 

N.T., 1/9/18, at 24-25. In its Rule 1925(a) opinion, the trial court recounted 

Officer Miller’s testimony as well as the trial court’s conclusion that the efforts 

made by the police were reasonable under the circumstances, warranting 

exclusion of the 112 days. Trial Court Rule 1925(a) Opinion, 6/14/18, at 6. 

The court explained it “cannot make a finding that the Commonwealth failed 

to exercise due diligence or make reasonable efforts to bring the case to trial 

so as to justify the dismissal of charges.” Id. 

Appellant argues that “the authorities did not exercise due diligence in 

trying to locate the Appellant once the complaint was filed and the warrant 

issued.” Appellant’s Brief at 10. In support of that contention, Appellant cites 

the testimony elicited in the course of cross-examining Officer Miller. 

Specifically, Appellant notes that Officer Miller “did not investigate places of 

employment,” “did not search for relatives,” “did not question his landlord,” 

“did not contact the [confidential informant] or anyone else who may have 
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known of his whereabouts,” and “did not check any PennDOT records.” Id. 

(quoting N.T., 1/9/18, at 14-17). 

Countering Appellant’s argument, the Commonwealth cites 

Commonwealth v. Hinton, 409 A.2d 54 (Pa. Super. 1979), in which this 

Court determined:

[T]he 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 [by] what was not done. The standard of 

due diligence demands only reasonable efforts.

Id. at 57-58 (emphasis in original). The Commonwealth contends Appellant 

gives mere lip service to the due diligence standard, focusing on what Officer 

Miller “did not do, rather than arguing that what she did do was in some way 

insufficient.” Commonwealth’s Brief, at 10. As the Commonwealth 

recognizes, Officer Miller obtained a warrant for Appellant’s arrest when the 

charges were filed. She entered the warrant in the NCIC database so that 

authorities would be notified of an outstanding warrant for Appellant’s arrest 

in the event he were to have future police contact in Pennsylvania or 

surrounding states. She authorized extradition. She attempted to locate 

Appellant at his residence and attempted to reach him on two or three 

occasions using his last known cell phone number. Commonwealth Brief at 

10. See also N.T., 1/9/18, at 12-14. She did not contact an employer 

because Appellant indicated he was not employed. She did not contact 

relatives because she was not aware of any. Id. at 14. 
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As our Supreme Court has 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. Mitchell, 372 A.2d 826, 832 (Pa. 1977). “[T]he efforts 

need only be reasonable; lack 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).

Here, after considering the efforts undertaken by Officer Miller, the trial 

court concluded the court “cannot make a finding that the Commonwealth 

failed to exercise due diligence or make reasonable efforts to bring the case 

to trial so as to justify the dismissal of charges.” Trial Court Rule 1925(a) 

Opinion, 6/14/18, at 6. Viewing the evidence of record from the Rule 600 

hearing and the findings of the trial court in the light most favorable to the 

Commonwealth as the prevailing party, we find no abuse of discretion in the 

trial court’s ruling.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/9/2019