J-S74043-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SAMUEL GARCIA 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2271 EDA 2017

Appeal from the Judgment of Sentence Entered March 2, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0014282-2014

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

MEMORANDUM BY McLAUGHLIN, J.: FILED MARCH 21, 2019

Samuel Garcia appeals from his judgment of sentence imposed on his 

convictions for attempted murder, aggravated assault, possession of an 

instrument of crime (“PIC”), simple assault, and recklessly endangering

another person (“REAP”).

1 Garcia challenges the discretionary aspects of his 

sentence and maintains that the trial court erred in denying his Pa.R.Crim.P. 

600 motion. We affirm.

The trial court aptly summarized the facts of this case as follows: 

On October 9, 2014, at approximately 10:00 p.m., police officers 

responded to a call of a person screaming at the intersection of 

Arch Street and Farson Street in the City and County of 

Philadelphia. The arriving officers observed a silver Dodge Caliber 

and a male pointing towards the car. Upon approaching the car, 

officers saw blood on the driver’s side of the vehicle and an 

additional pool of blood on the sidewalk with what appeared to be 

human teeth. Officer Michael Fischbach, one of the first officers on 

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1 18 Pa.C.S.A. §§ 901, 2502, 2702(a)(1), 907, 2701, and 2705, respectively. 
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the scene, approached the vehicle and observed the victim – later 

identified as V.B. – sitting in the driver’s seat of the vehicle and 

observed she had cuts, a swollen face and lacerations to her face, 

arms and hands. The officers on scene noted that V.B. did not 

appear completely cognizant, but [they] were able to gather 

information that the persons responsible for her attack lived with 

her. The officers recognized the one to two-inch slash marks on 

V.B. to be consistent with those inflicted by a knife. After getting 

the summary information from V.B.[,] the officers on scene called 

for an expedited response by paramedics, [and] the officers 

observed a knife in the interior of the Dodge Caliber.

V.B. knew Samuel Garcia from a restaurant both mutually 

frequented. After some time, V.B. rented space in her home 

located at 5522 Ridgewood Street in Southwest Philadelphia to 

[Garcia]. [Garcia] consistently paid his rent on time for 

approximately 8 or 9 months while living with the victim; the only 

major point of contention between the two was [Garcia] would eat 

food purchased by V.B. and his failure to pay her back for the 

food.

On October 9, 2014, the victim – V.B. – asked that [Garcia] move 

out of the home in which he had been renting space from V.B. for 

8 or 9 months. The victim wished for [Garcia] to move out due to 

the slovenly nature with which he kept space and for the continual 

taking of the victim’s food without permission. After the victim 

asked [Garcia] to move out of the home and to pay for the food 

he had taken, [Garcia] asked V.B. for a ride to his aunt’s house 

under the guise of collecting money from his aunt to give to the 

victim. The victim agreed to drive [Garcia] to his aunt’s house. At 

this time, the victim entered the driver’s seat of her vehicle, 

[Garcia] entered the front passenger seat of the vehicle and a 

second male entered the rear passenger seat of the vehicle. The 

three departed in the victim’s car and upon arriving at the home 

of [Garcia’s] aunt, they discovered that she was not home. 

[Garcia] then attempted to have V.B. drive to another location, 

but the victim refused. At that point, the male that was sitting in 

the backseat of the vehicle attempted to place something over the 

victim’s head while she was sitting in the driver’s seat. At the same 

time, [Garcia] took out a knife and began to stab at the victim. 

After repeatedly attempting to stab the victim with the knife, it 

broke in [Garcia’s] hand. This broken knife blade and handle were 

observed by responding officers on the passenger side of the 

vehicle where [Garcia] had been seated. V.B. used this 
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opportunity to attempt to make an escape from the vehicle, but 

[Garcia] continued to beat the victim inside the car. Through the 

beating, the victim was able to open the driver’s door of the 

vehicle at which time she fell out of the car and onto the ground.

Officers from the Special Investigations Unit, Southwest 

Detectives, of the Philadelphia Police Department recovered video 

of the events that unfolded outside of the vehicle from a grocery 

store located at 50th Street and Arch Street. The video depicts 

[Garcia] and the other male exit the vehicle[,] then kick the victim 

on or about the head approximately 25-30 times. The resulting 

beating left a pool of blood near the vehicle with human teeth. The 

victim was transported by ambulance to the Hospital of the 

University of Pennsylvania. At the hospital, V.B. was treated for 

bleeding on the brain, right medial orbital wall fracture - a fracture 

to the bone in her face – and was also found to have swelling in 

around the eye; fractured tooth root, multiple knife lacerations, 

multiple absent teeth and a collection of blood resulting from the 

lacerations. Detective Connell attempted to make contact with the 

victim at the hospital for an interview, but due to her condition 

was unable to take such an interview. Detective Connell was able 

to meet with V.B. at Southwest Detectives on October 17, 2014, 

at which time the victim identified [Garcia] as one of her attackers 

and the man who slashed at her in the vehicle prior to the knife 

breaking. 

Trial Court 1925(a) Opinion (“TCO”), filed Feb. 27, 2018, at 1-5 (citations to 

record omitted).

The Commonwealth filed a criminal complaint against Garcia on October 

22, 2014. See Criminal Complaint, filed 10/22/14. Trial was scheduled for May 

16, 2016. A week prior to trial the Commonwealth discovered that V.B. no 

longer resided in Philadelphia and had relocated to Savannah, Georgia but was 

unaware of her exact address. Upon notification of this, the Commonwealth 
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filed a motion arguing that V.B. was unavailable under Pa.R.E. 804(a).

2

Notably, when the Commonwealth filed its motion, it was still within 63 days 

of the mechanical run date under Rule 600 of the case. The trial court declined 

to find the witness unavailable stating:

I think you need to cross your T’s and dot your I’s. I mean, just 

saying you don’t have a complainant to appear, you have to do 

some searches of – some more detailed search to show me that 

you can’t locate her at all or that you contact her and she finally 

says, I can’t do this, my brain is not working well, as she’s told 

you in the past. I think you need to do a little further investigation 

into where she may be before you can tell me she’s not available. 

For all we know, you may locate her and she may be willing to 

come up.

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2 (a) Criteria for Being Unavailable. A declarant is considered to be 

unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the 

declarant's statement because the court rules that a privilege applies;

(2) refuses to testify about the subject matter despite a court order to 

do so;

(3) testifies to not remembering the subject matter, except as provided 

in Rule 803.1(4);

(4) cannot be present or testify at the trial or hearing because of death 

or a then-existing infirmity, physical illness, or mental illness; or

(5) is absent from the trial or hearing and the statement's proponent 

has not been able, by process or other reasonable means, to procure:

(A) the declarant's attendance, in the case of a hearsay 

exception under Rule 804(b)(1) or (6); or

(B) the declarant's attendance or testimony, in the case of a 

hearsay exception under Rule 804(b)(2), (3), or (4).

Pa.R.E. 804(a).
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N.T., Unavailability Motion Hearing, May 16, 2016, at 17. The trial court then 

continued the case for 90 days, to give the Commonwealth an opportunity to 

locate the victim. Id. at 18. 

Defense counsel filed a Rule 600 motion on July 26, 2016, requesting 

dismissal. At a hearing, the Commonwealth stated that it had found V.B. and 

that she was prepared to testify at trial. N.T., Rule 600 Motion, 8/25/16, at 

12. The trial court concluded that the Commonwealth had been duly diligent 

in bringing Garcia to trial and denied the motion. Id.

The Commonwealth proceeded with trial on August 31, 2016 and 

following a one-day bench trial, the court found Garcia guilty of the abovelisted offenses. At a sentencing hearing, the court heard from both parties and 

considered the Pre-Sentence Investigation (“PSI”) report. It then imposed the 

following sentence: 15 to 30 years’ incarceration for attempted murder which 

was merged with the aggravated assault conviction and a consecutive term of 

two and one-half to five years’ incarceration for PIC which was merged with 

both the simple assault and REAP convictions. Garcia filed a post-sentence 

motion that was denied by operation of law on July 12, 2017. This timely 

appeal followed. 

On appeal, Garcia raises the following issues:

1. Did not the lower court err in denying [Garcia’s] motion to 

dismiss under Pennsylvania Rule of Criminal Procedure 600(A) 

where the trial did not commence until well after the adjusted 

run date and the Commonwealth was not duly diligent in 

bringing the matter to trial because the Commonwealth failed 
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to investigate the whereabouts of an otherwise available 

complainant such that it needed a continuance?

2. Was not the sentencing court’s imposition [of] a sentence of 

171⁄2 to 35 years of incarceration unreasonable, manifestly 

excessive and an abuse of discretion where the court failed to 

conduct an individualized sentencing, did not properly consider 

the sentencing factors under 42 Pa.C.S.[A.] § 9721, ignored 

whether the sentence was the least stringent to protect the 

community, did not consider [Garcia’s] rehabilitative needs, 

and did not sufficiently place its reasons for its sentence on the 

record?

3. Did not the lower court err and abuse its discretion and impose 

a manifestly excessive sentence in imposing a consecutive 

sentence of 21⁄2 to 5 years of incarceration on the charge of 

possession of an instrument of crime where the sentence is five 

times longer than the aggravated range because the lower 

court failed to place sufficient reasons for its deviation on the 

record and failed to state on the record or otherwise 

acknowledge the sentencing guidelines?

Garcia’s Br. at 4 (trial court’s answers omitted). 

RULE 600

We review the denial of a motion to dismiss pursuant to Rule 600 for an 

abuse of discretion. See Commonwealth v. Kearse, 890 A.2d 388, 391 

(Pa.Super. 2005). “Our scope of review is limited to the evidence on the record 

of the Rule 600 evidentiary hearing and the findings of the trial court. We 

must view the facts in the light most favorable to the prevailing party.” Id. 

(quoting Commonwealth v. Williams, 876 A.2d 1018, 1020 (Pa.Super. 

2005)).

Rule 600 provides that a “trial 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). Rule 600
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also provides when time should be excluded from the calculation of the 

deadline. “Any delay in the commencement of trial that is not attributable to 

the Commonwealth when the Commonwealth has exercised due diligence

must be excluded from the computation of time.” Pa.R.Crim.P. 600, cmt; see 

also Pa.R.Crim.P. 600(C)(1).3 Ultimately, the inquiry “is whether the delay is 

caused solely by the Commonwealth when the Commonwealth has failed to 

exercise due diligence.” Pa.R.Crim.P. 600, cmt.

The Commonwealth bears “the burden of demonstrating by a 

preponderance of the evidence that it exercised due diligence.” 

Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012). “Due diligence 

is fact specific, to be determined case-by-case; it does not require perfect 

vigilance and punctilious care, but merely a showing the Commonwealth has 

put forth a reasonable effort.” Commonwealth v. Selenski, 994 A.2d 1083, 

1089 (Pa. 2010). 

The parties agree that 269 days are excludable; the only dispute is 

whether the trial court properly excluded the time between May 16, 2016 and 

the trial date. Garcia maintains that the time is not excludable because the 

time between May 16th and the trial date was caused by the Commonwealth’s 

delay in ensuring V.B.’s attendance on the original trial date. He maintains 

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3 “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(C)(1).
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that “[t]he Commonwealth sat on its hands for nearly a year, and engaged in 

the most minimal of effort to notify and secure the presence of its primary 

witness.” Garcia’s Br. at 27. We disagree.

First, it was not unreasonable to first contact V.B. one week before trial. 

Viewing the facts in the light most favorable to the Commonwealth, V.B. had 

appeared at prior court listings, indicated her willingness to testify, and had 

not given the Commonwealth any indication at any time of her intention to 

move away. As the trial court stated: 

[V.B.] . . . had made every effort to participate in the proceedings. 

[V.B.] testified at the preliminary hearing on December 22, 2014. 

Perhaps most tellingly, [V.B.] was subpoenaed to appear for the 

first trial date on October 16, 2015, and responded in the 

comments on the subpoena to “Please be patient. My brain don’t 

work the same.” 

TCO at 9.

Second, the Commonwealth exercised due diligence to bring Garcia to 

trial. Detective Timothy Connell testified that a week before the May 16th trial 

date, he went to V.B.’s last known address and learned that she had moved 

to Savannah, Georgia. See N.T., 5/16/16 at 8. Once he was notified of this 

information, he immediately forwarded the information to the assistant district 

attorney by email on May 11, 2016. Id. at 11, 14. The Commonwealth did not 

delay in notifying the court or defense counsel of its recent knowledge that 

the victim had relocated as the hearing on this new information was held five 

days later. In the end, the Commonwealth was able to make contact with V.B. 

and secure her testimony for trial. 
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Also, Garcia wrongly conflates the good–faith inquiry for determining 

the unavailability of a witness under Rule of Evidence 804 with the due 

diligence inquiry employed under Criminal Rule 600. He in effect concedes as 

much, stating that “[t]he standard applied under Rule 804 is nearly identical

to the due diligence standard employed under Rule 600(A).” Garcia’s Br. at 

24 (emphasis added). 

In any event, the standards are not “nearly identical.” Under Rule 804, 

a witness who cannot be found at the time of trial will be deemed unavailable

only if a good-faith effort to locate the witness and compel his attendance at 

trial has failed. “The burden of demonstrating such a good-faith effort is on 

the party seeking to introduce the prior testimony, and [t]he question of the 

sufficiency of the preliminary proof as to the absence of a witness is largely 

within the discretion of the trial judge. The extent to which [a party] must go 

in order to produce an absent witness is a question of reasonableness.”

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995)

(citations and quotation marks omitted). In contrast, Rule 600 provides that 

time will be ruled excludable where the Commonwealth proves by a 

preponderance of the evidence that it exercised due diligence in bringing the 

defendant to trial. See Commonwealth v. Plowden, 157 A.3d 933, 941 

(Pa.Super. 2017) (en banc). With these differing burdens in mind, the trial 

court’s decision to give the Commonwealth more time to locate V.B. before 

declaring her unavailable for purposes of Rule 804 does not amount to a 
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determination that the Commonwealth did not act with due diligence for 

purposes of Rule 600 in its effort to locate her. Therefore, we conclude the 

trial court did not abuse its discretion by denying Garcia’s motion. 

DISCRETIONARY SENTENCING

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058, 

1064 (Pa.Super. 2011). Before reviewing the merits of an appellant’s 

challenge to the discretionary aspects of his sentence, we must determine 

whether: (1) the appeal is timely; (2) the issue was preserved at sentencing 

or in a post-sentence motion; (3) the brief includes a Pa.R.A.P. 2119(f) 

statement;4 and (4) a substantial question is presented. See id.

Here, Garcia’s appeal is timely, his issues were preserved, and he 

provides a Rule 2119(f) statement. We now address whether he has presented 

a substantial question. Garcia presents two sentencing issues. His first - “the 

lower court did not sufficiently consider [his] rehabilitative potential or lack of 

danger to the community,” - does not raise a substantial question. Garcia’s 

Br. at 14; see Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa.Super. 

2013) (concluding claim that trial court failed to consider rehabilitative needs 

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4 “An appellant who challenges the discretionary aspects of a sentence in a 

criminal matter shall set forth in a separate section of the brief a concise 

statement of the reasons relied upon for allowance of appeal with respect to 

the discretionary aspects of a sentence.” Pa.R.A.P. 2119(f). 
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of appellant did not raise a substantial question). His second question fares 

better. Garcia claims “the court imposed a sentence on a misdemeanor offense 

that is well above the guidelines and then imposed it consecutively, without 

stating any basis for these decisions on the record,” which raises a substantial 

question. Garcia’s Br. at 14; see Commonwealth v. Antidormi, 84 A.3d 

736, 759 (Pa.Super. 2014). 

We review a challenge to the discretionary aspects of sentencing for an 

abuse of discretion. Commonwealth v. Bullock, 170 A.3d 1109, 1123 

(Pa.Super. 2017). An abuse of discretion is present where “the sentencing 

court ignored or misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill-will, or arrived at a manifestly unreasonable 

decision.” Id. (citation omitted).

At the sentencing hearing, the trial court stated the following: 

Mr. Garcia, I am at a loss, to be honest with you. You show no 

contrition or remorse. And I sat through a trial that made me 

cringe the whole time. It was worse than any gun case I’ve ever 

seen. . . . We could not see on the camera what you and your 

friend did, but that lady took the stand and described for us what 

occurred and the horror that occurred inside the vehicle of 

somebody putting something over her face, trying to strangle her, 

somebody using a weapon that was a knife stabbing her inside the 

car. That wasn’t enough. You dragged the woman outside the car, 

and when I tell you it was like seeing a football pl[a]yer trying to 

kick a field goal with her head, the violence of the foot connecting

with that woman’s head repeatedly over and over, and you sit and 

look at me, and honestly I see nothing.

Despite the woman testifying that it was you and despite seeing a 

film where I see her and see someone who I believe to be you and 

I found to be you, the physical toll that you put on this woman are 

all aggravating factors in this case.
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That’s what you did to this woman. You gave her a life sentence. 

She [will] never be the same person as before the beating. She’s 

sentenced to a life in a hospice or nursing home facility. She’s 

sentenced to life in a wheelchair where she can’t enjoy anything 

in life. 

N.T., Sentencing, November 5, 2016, at 21-23. The trial court gave its

reasoning for the imposed sentence. While Garcia would have preferred that

the court focus all of its attention on his mental health issues, the court was 

not remiss for also considering “the protection of the public” and “the gravity 

of the offense as it relates to the impact on the life of the victim and on the 

community.” 42 Pa.C.S.A. § 9721(b). The trial court did not abuse its 

discretion and therefore Garcia’s claim fails. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/19