J-S51021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

RASHEEM D. DOWDY,

Appellant No. 1814 EDA 2015

Appeal from the Judgment of Sentence May 12, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0000160-2014

BEFORE: BOWES and SHOGAN, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.: FILED MARCH 29, 2018

Appellant, Rasheem D. Dowdy, appeals from the judgment of sentence 

entered following his convictions of attempted homicide, robbery, robbery of 

a motor vehicle, aggravated assault, and carrying firearms without a 

license.1 We affirm.

The trial court presented the following detailed account of the factual 

and procedural history of this case:

On Sunday January 22, 2012[,] at approximately 5:06 pm 

Ridley Township Police responded to a call for a gunshot victim 

at the Church’s Chicken Restaurant located at 1936 West 

____________________________________________

*

 Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 901 and 2502, 3701(a)(1), 3702(a)(1), 2702, and 6106, 

respectively.
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McDade Boulevard in the Woodlyn Shopping Center in Woodlyn, 

Delaware County, Pennsylvania. (N.T. 8/14/2014, page 19).

The male victim, Mark L. Haas, was found bleeding on the 

floor with a gunshot wound to the chest. (N.T. 8/14/2014, page 

19). He reported that he had arranged to sell twenty (20) 

juvenile ball python snakes for twelve thousand six hundred 

dollars ($12,600.00) to a man known to him as Kevin Walmberg 

with a cell phone number (404)621-[****].

After receiving a confirmatory message indicating Mr. 

Walmberg would be arriving at the pre-arranged location in 15 

minutes, Mr. Haas left his vehicle, a black Toyota Rav 4 SUV 

vehicle, and entered the Church’s Chicken Restaurant.

On returning to his vehicle, Mr. Haas heard a voice from 

behind say “throw down the keys” and Mr. Haas observed a 

black male pointing a gun at him who ordered him out of the 

car, [to] throw down his keys and turn over his cell phone and 

threatened to kill him.

Mr. Haas complied and left the driver’s seat of his vehicle 

along with his keys, his cell phone and snakes. As he then ran 

around to the passenger side of the vehicle, the black male 

turned and shot at him from the driver’s seat striking Mr. Haas in

the chest and causing him to fall. The black male drove away in 

the vehicle containing the twenty (20) juvenile ball python 

snakes and Mr. Haas’ cell phone.

Shortly thereafter, the police received a report of a 

reckless driver on Eastbound McDade Boulevard fleeing along 

Edgewood Avenue. (N.T. 8/14/2014, page 19).

The police discovered Haas’ SUV abandoned on Edgewood 

Avenue with heavy front-end damage.

The police established a perimeter and deployed a K-9 unit 

to follow the fresh footprints in the snow from the abandoned 

SUV to the nearby wooded area.

While following the tracks in the snow the police first 

discovered a 9 mm Beretta handgun. The police also found a 

“Black Label” jacket sized XL with a Smith and Wesson 66 model 
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.357 Magnum revolver in the pocket. A scarf was also recovered 

from the jacket. (N.T. 8/14/2014, page 20).

The police processed the scene including hair samples from 

the interior of the SUV. A check on the Beretta handgun 

indicated it had been reported stolen in 2005. Police were able 

to match the bullet retrieved from the body of the victim, Mr. 

Haas, as being fired from the 9 mm Beretta recovered from the 

woods.

Detective Sargent William J. Henderson, Jr., a 27 year 

veteran of the Ridley Township Police Department, was the lead 

investigator assigned to the case. (N.T. 8/14/2014, page 16-

17).

Police investigation connected [Appellant], to the cell 

phone number used to arrange the purchase of the snakes 

through an alias “Jermaine Harper” known to be used by 

[Appellant].

Based on the suspect’s information, Detective Henderson 

developed a photo array line-up to determine if the victim would 

positively identify [Appellant] as his assailant. (N.T. 8/14/2014, 

page 24-25).

On February 28, 2012[,] the victim viewed the photo array 

line-up and immediately identified [Appellant] as the man who 

shot him from an eight (8) person photo array. (N.T. 

8/14/2014, page 33).

Once the Appellant was positively identified, Detective 

Henderson put the Appellant’s information into the NCIC 

database in an effort to locate the Appellant. He learned the 

Appellant was incarcerated in New York. (N.T. 8/14/2014, page 

35).

Based on the results of the search, Detective Henderson 

prepared an affidavit of probable cause to seek a New York 

warrant to obtain a DNA sample from the Appellant. (N.T. 

8/14/2014, pages 35-36).

Once the affidavit of probable cause was signed by a 

Magisterial District Judge in Pennsylvania it was forwarded to the 

King’s County, New York District Attorney’s office and 
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arrangements were made for Ridley Township Detectives and an 

FBI Special Agent to travel to King’s County New York on March 

6, 2012[,] and appear before a Judge in the King’s County New 

York Supreme Court to obtain the search warrant for the DNA 

sample. (N.T. 8/14/2014, pages 35-36).

A Detective from King’s County New York along with an 

assistant district attorney accompanied the Ridley Township 

Detectives and FBI agent to a hearing before the New York 

Supreme Court Judge who listened to the testimony in support 

of the search warrant and thereafter issued the search warrant 

for a sample of the Appellant’s DNA. (N.T. 8/14/2014, pages 

38-40).

None of the New York officials or law enforcement 

personnel indicated that either notice to the Appellant or a 

hearing at which the Appellant could challenge probable cause 

was a prerequisite to obtaining the search warrant or appearing 

before the Judge for a search warrant to collect the DNA sample. 

(N.T. 8/14/2014, pages 40). The detectives were then 

transported to the correctional facility to meet with the Appellant 

and collect a sample of his DNA. (N.T. 8/14/2014, pages 41-

42).

The sample was collected with buccal swab which 

Detective Henderson placed into the Appellant’s mouth and 

brushed back and forth seven (7) times on the side of his cheek. 

It was then packaged into an evidence bag and brought back to 

Pennsylvania. (N.T. 8/14/2014 page 42).

According to Detective Henderson the search warrant 

expressly permitted him to collect the DNA sample from the 

Appellant. (N.T. 8/14/2014, page 54).

Detective Henderson testified that since it was Ridley 

Township’s case that they brought the evidence collection kit and 

it was in the best interest for a Ridley Township Detective to 

obtain the sample not a New York Detective due to chain of 

custody issues. (N.T. 8/14/2014, page 84).

As of the time the sample was collected there were no 

charges filed against the Appellant [in Pennsylvania]. (N.T. 

8/14/2014, pages 45-46).
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The charges in the Ridley Township case were actually filed 

and approved by a Magisterial District Judge [on] April 18, 2012. 

(N.T. 8/14/2014, page 46). As of the time of filing of the 

charges on April 18, 2012[,] Detective Henderson received 

confirmation there was a potential match on the Appellant’s 

DNA. (N.T. 8/14/2014, page 46).

DNA swabs from the Appellant, the hairs from the vehicle, 

the DNA on the jacket, Beretta, Smith and Wesson, and scarf all 

matched [Appellant].

On April 18, 2012[,] a Ridley Township arrest warrant was 

issued for [Appellant] on charges of attempted criminal homicide 

and related offenses.

On April 18, 2012[,] the extradition unit of the Delaware 

County District Attorney’s Office faxed the Ridley Township 

arrest warrant and list of charges to the New York State 

authorities housing the Appellant at the Brooklyn House of 

Detention.

The criminal complaint against [Appellant] was filed April 

18, 2012.

The clerk from the Extradition Unit of the Delaware County 

District Attorney’s Office, Teresa Robins, was informed by 

authorities in the State of New York that [Appellant] had pending 

local charges. (N.T. 6/25/15 p. 15, 1-6).

The Chief of the Extradition Unit of the Delaware County 

District Attorney’s Office, Louis Stesis, Esquire, testified to his 

extensive experience in extradition and prisoner transfer matters 

and testified that the demanding jurisdiction cannot have 

custody of the prisoner where the prisoner has unresolved 

charges in the holding jurisdiction. (N.T. 7/15/14 p. 29, 1-5).

The Commonwealth produced the September 24, 2013 

correspondence from the New York Governor’s Office to the 

attention of Miriam Fonseca of the Office of Special Litigation of 

the New York County District Attorney’s Office corroborating the 

testimony of Louis Stesis, Esquire pertaining to the transfer of 

custody of [Appellant] that “the accused is not to be surrendered 

to the agents of the demanding state on the Executive Warrant 
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and Agent Authorization if there are criminal charges pending 

against him in the State of New York.”

The Commonwealth also offered the credible testimony of 

Teresa Robbins, the clerk of the extradition unit of the Delaware 

County District Attorney’s Office, who also testified in her 

experience that when local charges are pending that fugitives 

are not released to a requesting jurisdiction. She further 

testified that New York State authorities advised her that they 

would notify her when the Appellant was available. (N.T. 

6/25/14 p. 29, 11-19).

On January 26, 2012[, Appellant] had been charged in the 

Supreme Court of New York, Kings County, indictment number 

581-12 with crimes against children including counts for [i]ncest 

in the first degree, criminal sexual act in the first degree, sexual 

abuse in the second degree, sexual misconduct and endangering 

the welfare of a child.

On July 24, 2013[, Appellant] entered a guilty plea to the 

charge of endangering the welfare of a child in New York State.

On July 30, 2013[,] New York State arrested [Appellant] as 

a fugitive and commenced extradition. (N.T. 6/25/14 p. 17, 21-

25 & p. 18, 1-8). [Appellant refused to waive extradition.]

Thereafter[,] on August 27, 2013[,] the extradition unit of 

the Delaware County, Pennsylvania District Attorney’s Office 

completed an application for Requisition to the Governor of the 

Commonwealth of Pennsylvania for a Governor’s Warrant for the 

arrest of [Appellant]. (N.T. 6/25/14 p.19, 14-21). On 

September 10, 2013[,] the Governor of the Commonwealth of 

Pennsylvania issued a Requisition to the Governor of the State of 

New York for the arrest of [Appellant].

On September 13, 2013[,] the Governor of the State of 

New York issued an arrest warrant for [Appellant]. [New York 

authorities served the warrant on December 9, 2013.]

On December 9, 2013[,] the clerk of the extradition unit of 

the Delaware County District Attorney’s Office forwarded a pickup memo to the Office of the Sheriff of Delaware County for 

[Appellant].
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On December 19, 2013[, Appellant] was preliminarily 

arraigned on charges in Delaware County including: criminal 

attempt to commit criminal homicide, possession of a weapon, 

aggravated assault (2 counts), recklessly endangering another 

person, terroristic threats with intent to terrorize another, 

robbery (2 counts), robbery - threatens immediate serious bodily 

injury, robbery of a motor vehicle, theft by unlawful taking -

movable property, receiving stolen property (2 counts), 

unauthorized use of a motor vehicle, and firearms not to be 

carried without a license.

The Appellant’s formal arraignment was scheduled for 

January 16, 2014. On June 19, 2014[,] the Appellant filed the 

instant motion to dismiss pursuant to Pa.R.Crim.P. Rule 600. 

The hearing on [Appellant’s] Rule 600 Motion to Dismiss was 

conducted June 25, 2014[,] and continued [in order] to receive 

additional testimony on July 15, 2014. [Appellant’s] Jury Trial 

proceeded on February 9, 2015[,] and concluded with a finding 

of guilt on [all charges on] February 12, 2015. [Appellant] was 

sentenced on May 12, 2015.

Trial Court Opinion, 12/22/16, at 1-9.

Specifically, the trial court sentenced Appellant to serve an aggregate 

term of incarceration of thirty-one to sixty-two years. This timely appeal 

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

1925.

Appellant presents the following issues for our review:

Did the Trial Court err in denying [Appellant’s] Motion to 

Dismiss the charges pursuant to Pennsylvania Rule of Criminal 

Procedure 600 for the Commonwealth’s failure to bring him to 

trial within 365 days of the filing of these charges?

Did the Trial Court err in denying [Appellant’s] Motion to 

Suppress DNA evidence which was obtained in violation of his 

statutory, common law and constitutional rights emanating from 

the laws of the United States, New York and Pennsylvania?

Appellant’s Brief at 5.
J-S51021-17

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Appellant first argues that the trial court erred in denying his pretrial 

motion filed pursuant to Pa.R.Crim.P. 600 when it refused to dismiss the 

charges due to the Commonwealth’s failure to bring Appellant to trial within 

365 days of the filing of the criminal complaint. Appellant’s Brief at 13-20. 

Basically, Appellant contends that the Commonwealth failed to prove that it 

exercised due diligence in apprehending Appellant through the extradition 

process to bring him to trial in a speedy manner.2

Our review of a claim under Rule 600 is guided by the following 

principles:

[O]ur 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.

____________________________________________

2

In support of his Rule 600 claim, Appellant only argues that the 

Commonwealth failed to timely extradite him from New York. For the sake 

of completeness, we note that any additional delay was caused, in large 

part, by Appellant requesting a continuance and waiving Rule 600 on April 

21, 2014 (the original trial date), and then again requesting a continuance 

and waiving Rule 600 on May 19, 2014. Appellant subsequently filed an 

omnibus pretrial motion seeking suppression of evidence on May 30, 2014, 

as well as a motion to dismiss under Rule 600 on June 19, 2014. After 

conducting hearings on both motions, the trial court finally resolved the 

motions on September 15, 2014. The time between April 21, 2014 and 

September 15, 2014 amounts to 147 days.
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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 

[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. Plowden, 157 A.3d 933, 936 (Pa. Super. 2017) (en 

banc) (quoting Commonwealth v. Watson, 140 A.3d 696, 697-698 (Pa.

Super. 2016)).

As a general rule, the Commonwealth is required to bring a defendant 

to trial within 365 days of the date the complaint is filed. The version of 
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Rule 600 in effect at the time the criminal complaint against Appellant was 

filed3 stated, in relevant part, as follows:

Rule 600. Prompt Trial

* * *

(A)(2) Trial in a court case in which a written complaint is filed 

against the defendant, when the defendant is incarcerated on 

that case, shall commence no later than 180 days from the date 

on which the complaint is filed.

(3) Trial in a court case in which a written complaint is filed 

against the defendant, when the defendant is at liberty on bail, 

shall commence no later than 365 days from the date on which 

the complaint is filed.

* * *

(B) For the purpose of this rule, trial shall be deemed to 

commence on the date the trial judge calls the case to trial, or 

the defendant tenders a plea of guilty or nolo contendere.

(C) In determining the period for commencement of trial, there 

shall be excluded therefrom:

(1) 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 or her whereabouts were 

unknown and could not be determined by due 

diligence;

____________________________________________

3 We note that a new version of Rule 600 was adopted, effective July 1, 

2013, “to reorganize and clarify the provisions of the rule in view of the long 

line of cases that have construed the rule.” Pa.R.Crim.P. 600 cmt. 

However, because the criminal complaint in this case was filed on April 18, 

2012, prior to the effective date of the new rule, we will apply the former 

version of Rule 600. The amendments to Rule 600 do not affect the result in 

this case.
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* * *

(3) such period of delay at any stage of the 

proceedings as results from:

(a) the unavailability of the defendant or 

the defendant’s attorney;

(b) any continuance granted at the 

request of the defendant or the 

defendant’s attorney.

Pa.R.Crim.P. 600.

In addition, the comment to Rule 600 provided, in relevant part, as 

follows:

Under paragraph (C)(3)(a), in addition to any other 

circumstances precluding the availability of the defendant or the 

defendant’s attorney, the defendant should be deemed 

unavailable for the period of time during which the 

defendant contested extradition, or a responding jurisdiction 

delayed or refused to grant extradition; . . . or during 

which the defendant was absent under compulsory 

process requiring his or her appearance elsewhere in 

connection with other judicial proceedings.

Pa.R.Crim.P. 600 cmt (emphases added).

Regarding the calculation of time for the commencement of a speedy 

trial, we are mindful of the following:

The mechanical run date is the date by which the trial must 

commence under Rule 600. It is calculated by adding 365 days 

(the time for commencing trial under Rule 600) to the date on 

which the criminal complaint is filed. The mechanical run date 

can be modified or extended by adding to the date any periods 

of time in which delay is caused by the defendant. Once the 

mechanical run date is modified accordingly, it then becomes an 

adjusted run date.

Commonwealth v. Lynn, 815 A.2d 1053, 1056 (Pa. Super. 2003).
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We have long stated the following with regard to a defendant’s 

unavailability for trial:

“It is generally held that Rule [600] is tolled where the 

Commonwealth shows, by a preponderance of the evidence, that 

it has acted with due diligence in seeking extradition to bring the 

defendant to trial. ... The matters of availability and due 

diligence must be judged by what was done by the authorities 

rather than by what was not done.” Commonwealth v. 

DeMarco, 481 A.2d 632, 636 (Pa. Super. 1984) (internal 

citations omitted) (emphasis in original). Under Rule 600(C)(1), 

time between the filing of the complaint and a defendant’s arrest 

may be excluded from calculation of the trial commencement 

period, provided the defendant could not be apprehended 

because his whereabouts were unknown and could not be 

determined by due diligence. Commonwealth v. Ingram, 591 

A.2d 734, 737 (Pa. Super. 1991), appeal denied, 530 Pa. 631, 

606 A.2d 901 (1992). In addition, the Comment to Rule 600 

states a defendant is deemed unavailable during the time a 

responding jurisdiction delays or refuses to grant extradition. 

See Rule 600 Comment, supra.

Commonwealth v. McNear, 852 A.2d 401, 406 (Pa. Super. 2004). In 

addition, we have also explained the following:

A criminal defendant who is incarcerated in another jurisdiction 

is unavailable within the meaning of Rule 600 if the 

Commonwealth demonstrates by a preponderance of the 

evidence that it exercised due diligence in attempting to procure 

the defendant’s return for trial. Due-diligence is a fact-specific 

concept that is 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.

McNear, 852 A.2d at 404 (citations and quotation marks omitted).

Our review of the record reflects that the criminal complaint in this 

matter was filed on April 18, 2012. Therefore, the mechanical run date for 

the start of Appellant’s trial was April 18, 2013. Appellant’s trial did not 
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commence until February 9, 2015, which was 1,027 days after the filing of 

the criminal complaint and 662 days after the expiration of the mechanical 

run date. Nevertheless, there were circumstances beyond the 

Commonwealth’s control, i.e., Appellant’s unavailability due to compulsory 

process requiring his appearance in New York in connection with other 

judicial proceedings, which resulted in the delay of Appellant’s trial and 

resulted in an adjusted run date.

In addressing this issue, the trial court offered the following apt 

analysis:

The unrebutted credible evidence is that the State of New 

York would not transfer or otherwise release the Appellant to the 

custody of the Commonwealth of Pennsylvania until the 

Appellant’s New York State charges were resolved. Additionally, 

the evidence shows New York State did not raise the issue of 

extradition until after July 24, 2013[,] despite the diligence of 

the Delaware County Extradition Unit in notifying the authorities 

there on April 18, 2012 of [the] Commonwealth’s willingness to 

extradite the Appellant.

Further, the credible testimony of the Delaware County 

District Attorney’s Extradition Unit was that the holding state will 

not release a prisoner until local charges are resolved. The 

Commonwealth is not required to perform repeated fruitless acts 

where New York State would not release the Appellant until the 

charges there were resolved. The Commonwealth has no control 

over the delay in raising extradition attributable to New York 

State authorities.

The Commonwealth met the burden of showing by a 

preponderance of the evidence that due diligence was exercised 

in obtaining the Appellant’s presence for trial and that the 

circumstances occasioning the delay were beyond the control of 

the Commonwealth. Further, pursuant to Pa.R.Crim.P. Rule 600 

the Appellant was unavailable for trial between April 18, 2012 

and December 19, 2013[,] and these six hundred and eleven 
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days (611) are excludable delay not chargeable against the 

Commonwealth.

Trial Court Opinion, 12/22/16, at 16-17. We agree with the trial court’s

conclusion.

Our review of the record reflects that at the Rule 600 hearing, Teresa 

Robins, the coordinator for the extradition unit of the Delaware County 

District Attorney’s Office, testified regarding her efforts to secure Appellant’s 

return from New York. N.T., 6/25/14, at 5-51. Ms. Robins’s testimony 

indicated the timeline of the extradition process in this case, as well as her 

general experience as the extradition coordinator. The instant crime was 

committed on January 22, 2012, and the criminal complaint was filed by the 

Ridley Township Police Department on April 18, 2012. N.T., 6/25/14, at 10. 

In the interim, on February 7, 2012, Appellant was arrested in New York and 

was charged with committing a sexual crime in New York. Id. at 16. Ms. 

Robins received from the Ridley Township Police a copy of the warrant for 

Appellant’s arrest on April 19, 2012. Id. at 11. Also on that date, Ms. 

Robins faxed to the Brookland House of Detention in New York a copy of the 

warrant and a cover letter explaining that the Commonwealth was seeing 

extradition of Appellant.4 Id. at 11-13. Ms. Robins testified that New York 

____________________________________________

4 Along with other details, the letter contained the following language:

Please be advised that we will extradite the above named 

individual. We ask you to notify our department of the 

(Footnote Continued Next Page)
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authorities informed her that Appellant had pending charges and was not 

available. Id. at 15. She also indicated that she was notified by the New 

York authorities that she would be contacted when Appellant was available 

to be transferred to Pennsylvania. Id.

Specifically, the following transpired at the Rule 600 hearing regarding 

Ms. Robins’s contact with New York authorities concerning Appellant:

[COMMONWEALTH]: Ms. Robins, were you given any 

information from the New York authorities in regards to 

[Appellant’s] status in New York?

[MS. ROBINS]: Yes. [Appellant] had local charges in which [the 

Commonwealth] could not have him if -- while [Appellant] has 

matters in the other state.

[COMMONWEALTH]: Okay. And were you further notified by 

the New York authorities that you would be contacted when he 

was available to be transferred to Pennsylvania?

[MS. ROBINS]: Yes.

N.T., 6/25/14, at 15.

Ms. Robins stated that, in her experience as the extradition 

coordinator, when a defendant has pending charges in another jurisdiction 

the defendant is not available for extradition until the pending matter is 

(Footnote Continued) _______________________

willingness of the fugitive to waive extradition or the refusal to 

waive extradition and the need to make application for a 

Governor’s Warrant. Please lodge our request as a detainer.

N.T., 6/25/14, at 11.
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completed. Id. at 16. She further expressed that she has never received a 

fugitive while local charges were pending in another jurisdiction.5 Id. at 17.

Ms. Robins also testified as follows regarding the Commonwealth’s 

decision not to proceed further with the extradition process:

[COMMONWEALTH]: The time between April 19, 2012, to July 

25, 2013, why didn’t you proceed with extradition of the fugitive 

back to the Commonwealth of Pennsylvania?

[MS. ROBINS]: I wait[ed] for the other, in this case New York, 

to notify me as [of] the status of the person that we want. They 

always notify me what they need or when the person’s available 

and then I do what I do what they instruct me to do so . . .

[COMMONWEALTH]: Were you ever told during that time period 

that [Appellant] was available?

[MS. ROBINS]: No.

[COMMONWEALTH]: And why?

[MS. ROBINS]: He had matters there in New York that he 

needed to take care of first.

N.T., 6/25/14, at 26-27.

Ms. Robins offered the following testimony pertaining to her 

understanding and contact with the New York authorities and Appellant’s 

availability to be extradited to Delaware County:

____________________________________________

5 Ms. Robins specifically testified that she was not able to seek extradition 

pursuant to the Interstate Agreement on Detainer (“IAD”), 42 Pa.C.S. § 

9101, et seq., because Appellant had not yet been sentenced for a crime in 

New York. N.T., 6/25/14, at 30.
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[COMMONWEALTH]: What was your understanding as to 

whether or when [Appellant] would be available for extradition 

back to the Commonwealth of Pennsylvania?

[MS. ROBINS]: I just -- and like during that time it was my 

understanding that [Appellant] was, you know, there to handle 

his matters and that I would be notified at the next step when, 

you know, he would be finished there. Like and I had no -- in 

that time period I have no notification and often it takes some 

time because continuances and things and periods...

[COMMONWEALTH]: And it’s been your experience when there’s 

local charges pending are fugitives ever released to the 

Commonwealth of Pennsylvania, Delaware County?

[MS. ROBINS]: No, not when they have a pending case.

[COMMONWEALTH]: And you had conversations with the New 

York authorities that you would be notified when he was 

available. Correct?

[MS. ROBINS]: Yes.

N.T., 6/25/14, at 29.

In addition, the trial court heard testimony from Assistant District 

Attorney Louis Stesis, who is the chief of the extradition unit of the Delaware 

County District Attorney’s Office. N.T., 7/15/14, at 6-55. Mr. Stesis 

indicated that the extradition process is initiated by his office with the 

lodging of a detainer. Id. at 12, 14-15. Also, Mr. Stesis confirmed the 

testimony of Ms. Robins that when a defendant has pending charges in 

another jurisdiction, the defendant is not available for extradition until the 

pending matter is completed. Id. at 28-29. This testimony that New York 

authorities refused to extradite Appellant while New York charges were 

pending was corroborated by a letter from Carol D. Swan, the New York 
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State Governor’s Office extradition specialist, which was sent to the 

commissioner of the New York City Police Department and was attached to 

the Governor’s Warrant. Letter, 9/24/13, at 1-2 (Commonwealth Exhibit5).6

____________________________________________

6 The text of the New York letter provides, in pertinent part, as follows:

I have enclosed Governor Cuomo’s Executive Warrant & Agent 

authorization and supporting documents authorizing the 

surrender of [Appellant] to agents of the Commonwealth of 

Pennsylvania.

On behalf of Governor Cuomo, please be advised [Appellant] is 

not to be surrendered to the agents of the demanding state on 

the Executive Warrant & Agent Authorization if there are criminal 

charges pending against him in the State of New York. In 

accordance with New York Criminal Procedure Law Section 

570.44, Governor Cuomo has the discretionary authority to hold 

the accused pursuant to the Executive Warrant & Agent 

Authorization pending completion of trial proceedings or his 

conviction and punishment in this state before surrendering him 

on the requisition of the executive authority of the demanding 

state.

Furthermore, the accused is not to be surrendered to agents of 

the demanding state if the criminal charges pending against him 

result in his commitment to the New York State Department of 

Corrections and Community Supervision (DOCCS). If the 

charges result in a DOCCS sentence, the fugitive matter should 

be dismissed and the Executive Warrant & Agent authorization 

and related documents returned to me at the above address. 

Agents of the demanding state may obtain custody of the 

accused pursuant to the Interstate Agreement on Detainers (CPI 

Section 580.20) or wait until he is discharged from his sentence 

and available for surrender.

(Footnote Continued Next Page)
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The record also reflects that Ms. Robins explained that Appellant 

ultimately pled guilty to charges in New York on July 24, 2013. N.T., 

6/25/14, at 17. On July 25, 2013, the Pennsylvania warrant was again 

faxed to New York authorities. Id. at 18. On July 30, 2013, New York 

started the next level of the extradition process, but Appellant refused to 

waive extradition on that date. Id. at 18-19. Ms. Robins testified that she 

was informed on August 3, 2013, that Appellant had been transferred from 

Brookland to Manhattan. Id. at 18. On August 27, 2013, Ms. Robins mailed 

a request for a Governor’s Warrant to Harrisburg. Thereafter, the 

Governor’s office in Harrisburg sent a Governor’s Warrant to New York 

authorities on September 10, 2013. Id. at 20. The Governor’s Warrant 

ultimately was served upon Appellant by New York authorities on December 

9, 2013. Id. at 20-21. Also on December 9, 2013, upon being notified that 

the Governor’s Warrant had been served upon Appellant, Ms. Robins issued 

a memo to the Delaware County Sheriff’s Office with instructions on 

retrieving Appellant in New York. Id. at 21. Thereafter, Appellant was 

returned to Pennsylvania and proceeded to a preliminary arraignment on 

December 19, 2013. Id. at 22.

(Footnote Continued) _______________________

If the accused receives a local sentence, he should be 

surrendered upon satisfaction of sentence. If the charges result 

in an acquittal or dismissal, he may be surrendered at that time.

Letter, 9/24/13, at 1.
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Thus, the record reflects that the Commonwealth acted with due 

diligence in seeking Appellant’s return once he fled to New York, committed 

a crime in that jurisdiction, was held in New York pending resolution of that 

judicial process, and subsequently refused to waive extradition. Appellant’s 

contrary claim that the Commonwealth did not act with due diligence in 

securing Appellant’s return from New York is belied by the record. Hence, 

his claim in this regard lacks merit.

Appellant next argues that the trial court erred in denying his motion 

to suppress evidence. Appellant’s Brief at 21-25. Specifically, Appellant 

claims that the trial court should have suppressed his DNA evidence that was 

obtained while Appellant was an inmate in New York. Appellant alleges that 

his DNA was acquired in violation of New York law and therefore must be 

suppressed. Id. at 22-24. Appellant presents the following argument in this 

regard:

Under New York law, the Due Process Clauses of the 

United States and New York Constitutions require that, absent 

exigent circumstances, a suspect must be provided with notice 

that an application to procure a DNA sample has been made and 

an opportunity to appear before a court to contest the People’s 

application. People v. Smith, 940 N.Y.S.2d 373, 377 (4th Dep’t 

2012); People v. Fomby, 956 N.Y.S.2d 633, 635 (3rd Dep’t 

2012); See U.S. Const. Amend. XIV; N.Y. Const. Art. I, Sec. 6. 

Furthermore, the New York Supreme Court has held that in 

cases where Due Process is not provided prior to the issuance of 

a search warrant for a DNA sample, any evidence resulting from 

the search must be suppressed. Id.

The testimony of Officer Henderson indicates that 

acquiring the warrant did not comply with the law of the state of 

New York. [Appellant] was not provided with notice that an 
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application for a search warrant to procure a DNA sample was 

being made, nor was he provided any opportunity to contest the 

application in court prior to the warrant being issued or 

executed. (N.T. 8/14/15 at 50-51) [Appellant] was given no 

consent form to the DNA, nor was he informed of his right to 

refuse or his right to contest the warrant. (N.T. 8/14/15 at 56-

57) Accordingly, the issuance and execution of the search 

warrant violated his rights under the Due Process Clauses of the 

New York and United States Constitutions and must be 

suppressed.

Id. at 22-23. Upon thorough review of the law and the facts of this case, we 

determine that Pennsylvania law applies.

With respect to an appeal from the denial of a motion to suppress, our 

Supreme Court has stated the following:

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is whether the factual 

findings are supported by the record and whether the legal 

conclusions drawn from those facts are correct. When reviewing 

the ruling of a suppression court, we must consider only the 

evidence of the prosecution and so much of the evidence of the 

defense as remains uncontradicted when read in the context of 

the record. . . . Where the record supports the findings of the 

suppression court, we are bound by those facts and may reverse 

only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations 

omitted). Moreover, we note that our scope of review from a suppression 

ruling is limited to the evidentiary record that was created at the 

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).7

____________________________________________

7 On October 30, 2013, our Supreme Court decided In re L.J., holding that 

our scope of review from a suppression ruling is limited to the evidentiary 

record that was created at the suppression hearing. L.J., 79 A.3d at 1087. 

(Footnote Continued Next Page)
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In addition, the decision to admit or exclude evidence is committed to 

the trial court’s sound discretion, and its evidentiary rulings will only be 

reversed upon a showing that it abused that discretion. Commonwealth v. 

Laird, 988 A.2d 618, 636 (Pa. 2010). Such a finding may not be made 

“merely because an appellate court might have reached a different 

conclusion, but requires a result of manifest unreasonableness, or partiality, 

prejudice, bias, or ill-will, or such lack of support so as to be clearly 

erroneous.” Id. (quoting Commonwealth v. Sherwood, 982 A.2d 483, 

495 (Pa. 2009)).

Further, we are aware that Pa.R.Crim.P. 581, which addresses the 

suppression of evidence, provides in relevant part as follows:

(H) The Commonwealth shall have the burden . . . of 

establishing that the challenged evidence was not obtained in 

violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

(Footnote Continued) _______________________

Prior to L.J., this Court routinely held that, when reviewing a suppression 

court’s ruling, our scope of review included “the evidence presented both at 

the suppression hearing and at trial.” Commonwealth v. Charleston, 16 

A.3d 505, 516 (Pa. Super. 2011) (quoting Commonwealth v. Chacko, 459 

A.2d 311 (Pa. 1983)). L.J. thus narrowed our scope of review of 

suppression court rulings to the evidence presented at the suppression 

hearing. In this case, Appellant’s suppression hearings were held after L.J.

was decided. Therefore, the rule announced in L.J. applies to the case at 

bar. See L.J., 79 A.3d at 1089 (stating holding applies to “all litigation 

commenced Commonwealth-wide after the filing of this decision”).
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Concerning issues that present a conflict of law, our Supreme Court 

has instructed as follows:

The Pennsylvania approach to conflict of law issues varies 

depending upon whether the laws are procedural or substantive 

in nature.10 Pursuant to Commonwealth v. Sanchez, 552 Pa. 

570, 716 A.2d 1221 (1998), where a conflict of law arises 

regarding procedural matters, Pennsylvania will apply its 

procedural laws when it is the forum state. Id., at 1223. 

However, where a conflict exists regarding substantive laws, 

such as here, “Pennsylvania courts take a flexible approach 

which permits analysis of the policies and interests underlying 

the particular issue before the court.” Id. “This approach gives 

the state having the most interest in the question paramount 

control over the legal issues arising from a particular factual 

context, thereby allowing the forum to apply the policy of the 

jurisdiction most intimately concerned with the outcome.” Id., 

at 1223–[12]24.

10 “As a general rule, substantive law is that part of 

the law which creates, defines[,] and regulates 

rights, while procedural laws are those that address 

methods by which rights are enforced.” Payne v. 

Commonwealth Department of Corrections, 582 

Pa. 375, 871 A.2d 795, 801 (2005) (citations 

omitted).

Commonwealth v. Housman, 986 A.2d 822, 841-842 (Pa. 2009).

A substantive right is defined as a right to equal enjoyment of 

fundamental rights, privileges and immunities, as distinguished from a 

procedural right. Sanchez, 716 A.2d at 1224. By contrast, procedural law

is that which prescribes the methods of enforcing rights or obtaining redress 

for their invasion; this is distinguished from the substantive law which gives 

or defines the right. Id. Because the issue before us involves the 

constitutional protections regarding searches and seizures, this issue must 
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be addressed under the principles of conflict between substantive laws, 

which requires this Court to evaluate which state has the most interest in 

the outcome.

In Sanchez, a canine sniff of a package in California, which was sent 

to a Pennsylvania resident, gave rise to the probable cause necessary for 

issuance of a Pennsylvania search warrant. The canine sniff was legal under 

California law but not Pennsylvania law. Sanchez, 716 A.2d at 1222-1223. 

The Sanchez Court concluded that California possessed the greater interest 

in the validity of a canine sniff and, because the sniff complied with 

California law, it could be used to support probable cause in Pennsylvania. 

Sanchez, 716 A.2d at 1224. The Sanchez Court further held that no 

Pennsylvania state interest would be advanced by analyzing the propriety of 

the canine sniff under Pennsylvania law because the canine sniff did not 

occur in Pennsylvania and no Pennsylvania state officer was involved in 

the canine sniff. The Court in Sanchez concluded by holding “that if the 

courts of a sister state determine that a canine sniff is not a search in that 

state the propriety of a sniff initiated by that state’s officers and 

conducted within that state’s boarders must be evaluated under the laws of 

that state.” Sanchez, 716 A.2d at 1225 (emphasis added).

In the case sub judice, we agree with the trial judge that Pennsylvania 

law governs. The victim of the robbery and shooting was a Pennsylvania 

resident, Appellant is a Pennsylvania resident, the crime was initiated in a 
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vehicle registered in the Commonwealth of Pennsylvania, and the crimes 

occurred in Pennsylvania. The Ridley Township Police Department 

investigated the crimes in this matter. The original affidavit of probable 

cause requesting a search warrant for DNA evidence to be taken from 

Appellant was signed by both a detective of Ridley Township Police 

Department and a Pennsylvania Magisterial District Judge. Appellant was 

ultimately charged with violations of the Pennsylvania Crimes Code. Here, 

as the trial court observes, Pennsylvania possessed the greater interest than 

New York. Trial Court Opinion, 12/22/16, at 23. Consequently, the trial 

court did not err in applying Pennsylvania law and refusing to suppress 

Appellant’s DNA evidence due to alleged violations of New York law.

In addition, Appellant contends that the DNA evidence should have 

been suppressed under Pennsylvania law because the search was conducted 

without a search warrant validly issued within Pennsylvania. Appellant’s 

Brief at 24. Appellant asserts that a Pennsylvania police officer exceeded his 

authority when he obtained a New York warrant to take Appellant’s DNA 

sample while Appellant was an inmate in a New York criminal facility.8 Id. 

at 24-25. This allegation lacks merit.

As we previously observed, Pennsylvania will apply its procedural laws 

when it is the forum state. Sanchez, 716 A.2d 1223. The relevant 

____________________________________________

8 Appellant does not allege that the search warrant was not supported by 

probable cause.
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Pennsylvania Rule of Criminal Procedure provides as follows: “[a] search

warrant may be issued by any issuing authority within the judicial district 

wherein is located either the person or place to be searched.” Pa.R.Crim.P. 

200. This Rule authorizes Pennsylvania courts to issue a warrant where it 

has jurisdiction over “the place or person to be searched.” Id. 

Consequently, police officers are to obtain warrants from the jurisdiction 

where the person, places, or effects to be searched or seized are located. 

Moreover, in Pennsylvania proceedings, we have held that police may use

evidence seized pursuant to a warrant obtained through the cooperation 

between Pennsylvania police and a neighboring jurisdiction. See, e.g., 

Commonwealth v. Corbo, 440 A.2d 1213, 1215 (Pa. 1980) (reversing 

order granting suppression of evidence resulting from a search of the 

appellees’ place of business, where the Commonwealth secured the 

Pennsylvania search warrant through affidavits supported by information 

received from the New Jersey State Police). In addition, we observe that our 

Supreme Court has long held that the requirement “that the officers serving 

the warrant have territorial jurisdiction at the place of the search, is wrong.” 

Commonwealth v. Mason, 490 A.2d 421, 427 (Pa. 1985). “[Pennsylvania] 

Rule [of Criminal Procedure 204] provides, clearly and simply, that a search 

warrant shall be served by a law enforcement officer. The comment to the 

rule provides that ‘[n]o specific person need be designated in the warrant. 

However, only a law enforcement officer can properly serve a search 
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warrant.’” Id. (emphases in original). In addition, our Supreme court has 

explained the following:

[E]ven were we to agree [that Rule 204] required that a law 

enforcement officer having primary jurisdiction in the place 

where the search is to take place actually “participate” in the 

service of the warrant, we would not hesitate to find that 

requirement met in the instant case because of the presence of 

“jurisdictional police officers” . . . at [the place searched]. The 

distinction recognized by the Superior Court, between searches 

wherein “jurisdictional police” participate in the search 

“regardless of the degree of participation” and searches wherein 

“jurisdictional police” are “merely” present at the scene, is 

artificial; their presence is certainly sufficient to constitute 

“actual participation.”

Mason, 490 A.2d at 427. See also Commonwealth v. Kunkel, 408 A.2d 

475, 476-477 (Pa. Super. 1978) (reversing order granting motion to 

suppress where search warrant was not defective because police officers 

were acting beyond the scope of their jurisdiction).

In addressing Appellant’s concern, the trial court offered the following 

discussion:

The relevant Pennsylvania Rule of Criminal Procedure 

pertaining to issuance of a search warrant states: “a search 

warrant may be issued by any issuing authority within the 

judicial district wherein is located either the person or place to 

be searched.” See Pa.R.Crim.P. 200. The statute plainly 

authorizes Pennsylvania courts to issue a warrant where it [has]

jurisdiction over “the place or person to be searched.” Id. 

Because the police officers must obtain warrants from the 

jurisdiction where the person, places, or affixed to be searched 

or seized or located. See Id.; [s]ee also Commonwealth v. 

Ryan, 400 A.2d 1264, 1268 (Pa. 1979). Just as in 

Commonwealth v. Corbo, 440 A.2d 1213, 1215 (Pa. 1980)[,] 

where it was held officers may use evidence seized pursuant to a 

warrant obtained through the cooperation among officers in 

Pennsylvania and New Jersey in Pennsylvania proceedings[,] 
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here, by analogy[,] officers of Pennsylvania may use evidence 

seized pursuant to a warrant obtained through cooperation 

among officers in New York.

In this case, Ridley Township police worked with law 

enforcement outside of Pennsylvania because Appellant was 

incarcerated in New York at the time. The assistance of New 

York police was necessary to obtain and execute the search 

warrant. See Commonwealth v. Kunkel, 408 A.2d 475, 476-

[4]77 (Pa. Super. 1978).

Trial Court Opinion, 12/22/16, at 20-21.

Upon review of the certified record, we conclude that there was no 

violation of Pennsylvania procedural law in the issuance and execution of the 

search warrant to secure Appellant’s DNA. Here, it is undisputed that the 

Ridley Township police worked with officials outside of the Commonwealth 

because Appellant was incarcerated on pending charges in the state of New 

York. Commonwealth Exhibit #CS-4, 8/14/14, Affidavits of Probable Cause 

dated 3/1/12 and 3/6/12. The assistance of New York police was necessary

in procuring and executing a valid New York search warrant, which was 

where Appellant was incarcerated. Commonwealth Exhibit #CS-4, 8/14/14, 

New York Search Warrant. It is further undisputed that New York police 

accompanied the Ridley Township police officer to execute the search 

warrant and to secure the DNA sample. Accordingly, we are satisfied that 

there was no violation of Pennsylvania procedural law and the results of 

Appellant’s DNA testing were properly admitted under Pennsylvania law.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/29/18