Judges Opinions Public Notices, — August 14, 2019 9:18 — 0 Comments

Public Notices August 14, 2019

Volume 57, No. 2

 

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

 

TABLE OF CONTENTS

Opinion- Commonwealth of Pennsylvania v. Lizaida Garay

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF ROBERT T. BLANSHINE, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

James A. Blanshine, Executor

Ronald L. Blanshine, Executor

c/o Kling and Deibler, LLP

131 W. Main Street

New Holland, PA 17557

 

Linda Kling, Esquire

Kling & Deibler, LLP

 

ESTATE OF CARL L. CERESINI, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted by the undersigned Executrix.

 

Debra A. Carpenter-Madden, Executrix

 

Patrick M. Reb, Esquire

547 S. Tenth Street

Lebanon, PA 17042

 

ESTATE OF TODD M. MEYERHOFFER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Administrator.

 

C. Tyler Meyerhoffer

4300 Crossings Blvd. Apt. A-208

Lancaster, PA 17610

 

Joseph M. Farrell, Esquire

201/203 South Railroad Street

PO Box 113

Palmyra, PA 17078

 

 

 

 

ESTATE OF ENRIQUE L.M. CASTILLO, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrices.

 

Nina M. Castillo, Executrix

Lauri S. Castillo, Executrix

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF LEON K. FRY, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Kurt M. Yordy

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF JEFFREY L. TICE, a/k/a JEFFREY LEE TICE, late of North Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Andrea Frantz, Executrix

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

 

ESTATE OF ROBERT L. BACHMAN, late of the Borough of Myerstown, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the understigned Executrix.

 

Theresa L. Frederick, Executrix

99 Bethany Road

Womelsdorf, PA 19567

 

Richard V. Grimes, Jr., Esquire

99 Clubhouse Drive

Bernville, PA 19506

 

ESTATE OF DONALD E. MARTIN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been  granted to the undersigned Executrix.

 

Margaret Ulrich, Executrix

200 Mopar Avenue

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 E. Main Street

Palmyra, PA 17078

 

ESTATE OF HAROLD A. LEBO, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentry have been granted ot the undersigned Co-Executors.

 

Wayne S. Lebo, Co-Executor

Susan M. Dibeler, Co- Executor

 

Keith D. Wagner, Attorney

PO Box 323

Palmyra, PA 17078

 

ESTATE OF RICHARD L. MILLER, SR., late of East Hanover Township, Lebanon County, Pennsylvania, deceased.  Letters Testamentary have been granted to the undersigned Executor.

 

Richard L. Miller, Jr., Executor

12 Branstock Court

Lititz, PA 17543

 

Frederick S. Long, Attorney

315 S. Eighth Street

Lebanon, PA 17042

 

THIRD PUBLICATION

 

ESTATE OF BEVERLY A. STUCKEY, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Mark A. Stuckey

111 N. Ramona Rd., Lot 61

Myerstown, PA 17067

 

William H. Sturm, Jr. Esquire

Steiner & Sandoe, Attorneys

 

ESTATE OF DOROTHY A. YEAGLEY, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Ricky E. Yeagley

2719 Colonial Road

Harrisburg, PA 17112

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

 

ESTATE OF DOLORES J. SAYLOR, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Robert F. Saylor, Executor

 

John F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

 

ESTATE OF HOWARD WETZEL, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executor and Co-Executrix.

 

Ann Fastnacht, Co-Executrix

310 Woodchuck Drive

Ephrata, PA 17522

 

David Wetzel, Co-Executor

1212 Pleasure Road

Lancaster, PA 17601

 

Kari E. Panza, Esquire

R.J. Marzella & Associates

3513 North Front Street

Harrisburg, PA 17110

 

ESTATE OF RICHARD P. SWOYER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Deborah A. Swoyer, Executrix

429 Guilford Street

Lebanon, PA 17046

 

Jason J. Schibinger, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARGARET M. ROOF, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Margaret Lahr, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF LORRAINE J. ENGLE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Richard C. Engle, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ARLENE M. GISH, a/k/a ARLENE S. GISH, late of South Londonderry Township, Lebanon County, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lee Ann Naylor, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF WARREN R. WEIERBACH a/k/a WARREN RUFUS WEIERBACH, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Kathleen Wilhelm, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF RAYMOND A. SEIBERT, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Spencer C. Seibert, Executor

 

George E. Christianson, Attorney

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF BRUCE CLAUDE KENSINGER, late of Annville, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been grated to the undersigned Executrix.

 

Rachel R. Kensinger, Executrix

 

Steven S. Werner, Esquire

Werner Law Group

439A Walton Avenue

Hummelstown, PA 17036

 

ESTATE OF THOMAS J. McCARTHY, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Joan C. McCarthy, Executrix

813 Walnut Crest Drive

Lebanon, PA 17046

 

Michael L. Mixell, Esquire

Barley Snyder

50 North Fifth Street, Second Floor

PO Box 942

Reading, PA 19603-0942

OPINION

 

Commonwealth of Pennsylvania v.  LIZAIDA GARAY

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYVLANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

 

v.

 

 LIZAIDA GARAY

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CP-38-CR-1140-2015

ORDER

AND NOW, to wit, this 29th day of October, 2018, upon consideration of Defendant’s Motion to Dismiss Pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure, the parties’ briefs in support and upon the hearing thereon, the Motion is hereby GRANTED.

 

BY THE COURT

 

 

____________________J.

SAMUEL A. KLINE

 

cc:     Office of the District Attorney (BDB)

Office of the Public Defender (VMV)

Court Administration (order only)

Matt Cole // Law Clerk (order only)

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYVLANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA

 

v.

 

 LIZAIDA GARAY

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CP-38-CR-1140-2015

 

APPEARANCES:

Vienna M. Vasquez, Esq.        for Defendant

Benjamin D. Baker, Esq.        for the Commonwealth

OPINION, KLINE, J., OCTOBER 29, 2018

Before the Court is Defendant’s Pre-Trial Rule 600 Motion to Dismiss.  For reasons set forth herein, we grant Defendant’s Motion, as specified below.

FACTS AND PROCEDURAL HISTORY

On May 12, 2015, Sergeant Andrew Herberg of the North Lebanon Township Police Department responded to a dispatch on a report of a stolen vehicle at 1153 Jay Street in North Lebanon Township, Lebanon County, Pennsylvania.  When Sergeant Herberg arrived, he learned that Defendant lived at the residence along with her father (“Father”) and father’s girlfriend, Roselin Diaz-Centeno.  Ms. Diaz-Centeno reported to Sergeant Herberg that her vehicle was missing and so was Defendant.

Through efforts of Father and Ms. Diaz-Centeno, the stolen vehicle was located in Philadelphia along with Defendant.  The Philadelphia Police detained Defendant and notified Sergeant Timothy Knight of North Lebanon Police Department.  However, due to manpower restraints, the North Lebanon Police Department was unable to retrieve Defendant and transport her to North Lebanon.  During his conversation with the Philadelphia Police, Sergeant Knight indicated that charges would be filed against Defendant.  Defendant was thereafter released by the Philadelphia Police and remained in Philadelphia.

On June 1, 2015, Sergeant Herberg filed a criminal complaint charging Defendant with one count of Unauthorized Use of an Automobiles and Other Vehicles[1] and one count of Drivers Required to be Licensed.[2]  At the time that charges were filed, Sergeant Herberg contacted Father who indicated that Father was in contact with Defendant through Facebook and mobile phone.  Sergeant Herberg asked Father to notify Defendant of the charges and Father agreed.

A summons was issued on June 2, 2015 from the Magisterial District Court and sent first class and certified to the Jay Street address for Defendant because sergeant Herberg believed that the Jay Street address was still Defendant’s legal address.  The certified summons was accepted on June 10, 2015 indicating that Father had signed for delivery of the summons and complaint.  The first class summons was accepted on June 23, 2015, twenty-one days after mailing without return to the issuing authority.

A preliminary hearing was scheduled for June 25, 2018, but Defendant failed to appear.  Magisterial District Judge Kim R. Wolfe held the hearing in absentia and the charges were bound over for court.  A bench warrant for Defendant was issued the same day from this Court.  On July 20, 2018, Defendant turned herself in to the North Lebanon Township Police Department and the bench warrant was vacated with call of list scheduled for September 11, 2018, and trial set to begin September 26, 2018.

On August 28, 2018, Defendant filed a Motion to Dismiss Pursuant to Rule 600 of the Pennsylvania Rules of Criminal Procedure.  The Motion alleges that 1,147 days had elapsed between the filing of the complaint and Defendant’s arrest without justification in the delay and requests this Court to dismiss the charges against her.  A hearing on the Motion was scheduled for September 12, 2018.  At the hearing, the Commonwealth brought two witnesses for testimony.

Sergeant Herberg first testified that he responded to the report of the stolen vehicle at the Jay Street address.  Sergeant Herberg testified that he understood Defendant to be living with Father and Ms. Diaz-Centeno at the Jay Street address and believed that was Defendant’s official residence at the time of the report and the subsequent filing of charges.  Sergeant Herberg also testified that he asked Father to relay the charges to Defendant and Father agreed.  Finally, Sergeant Herberg testified as to the interaction between the Philadelphia Police and the North Lebanon Police and the fact that the North Lebanon Police were unable to transport Defendant to the township.  On cross-examination, Sergeant Herberg agreed that he knew Defendant was in Philadelphia, but that he was uncertain as to an exact location.

Sergeant Bradley Seyfert with the Lebanon County Sheriff’s Department testified that on April 28, 2016, a bench warrant for Defendant was served at the Jay Street address.  Father indicated that Defendant was in Philadelphia and upon a search of the residence, Defendant was not located.  On July 16, 2018, Defendant contacted the Sheriff’s Department to inquire about the bench warrant and was advised to turn herself in and Defendant did so a few days later.

The Court then questioned the Commonwealth and Sergeant Seyfert regarding a CPCMS document entitled “Defendant Identification Information” that provided several addresses for Defendant including an address on North 9th Street in Philadelphia, along with the Jay Street address.  Sergeant Seyfert indicated that the information is pulled from various sources and then checked as to accuracy and whether the address may be current or not.  The Commonwealth agreed that service of the summons and complaint were only sent to the Jay Street address and no attempt was made at the Philadelphia address listed on the information sheet.

We then directed both counsel to submit briefs to the Court on the issue of reasonable efforts of the Commonwealth in light of official documents indicating an address in Philadelphia, knowledge of the Commonwealth that Defendant was in Philadelphia, efforts by police indicating that Defendant was not in Lebanon County and no documentation showing that any attempt to serve Defendant at the address in Philadelphia was made.  Both parties filed briefs on October 12, 2018.  The matter is thus before this Court and ripe for disposition.

DISCUSSION

Both the United States Constitution and the Pennsylvania Constitution guarantee a defendant the right to a speedy trial[3].  Rule 600[4] of the Pennsylvania Rules of Criminal Procedure, which was designed to implement the right to a speedy trial, provides that “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).  When the Commonwealth has failed to bring a defendant to trial within the 365 days as prescribed, the Rule provides that a defendant may file a “motion requesting that the charges be dismissed with prejudice on the ground that this rule has been violated.” Pa.R.Crim.P. 600(D)(1).

However, a defendant is not automatically entitled to dismissal upon a violation of Rule 600. Commonwealth v. Roles, 116 A.3d 122, 125 (Pa.Super. 2015).  “To determine whether dismissal is required under Rule 600, a court must first calculate the ‘mechanical run date,’ which is 365 days after the complaint was filed.” Commonwealth v. Goldman, 70 A.3d 874, 879 (Pa.Super. 2013).

[T]he Rule 600 [mechanical] run date may [then] be adjusted pursuant to the computational directives set forth in Subsection (C) of the Rule. For purposes of the Rule 600 computation, “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.” Id. 600(C)(1). “Any other periods of delay,” including those caused by the defendant, “shall be excluded from the computation.” Id. When considering a Rule 600 motion, the court must identify each period of delay and attribute it to the responsible party, then adjust the 365-day tally to arrive at the latest date upon which the Commonwealth may try the defendant. Absent a demonstration of due diligence, establishing that the Commonwealth has done “everything reasonable within its power to guarantee that [the] trial begins on time,” Commonwealth v. Matis, 551 Pa. 220, 710 A.2d 12, 17 (1998), the Commonwealth’s failure to bring the defendant to trial before the expiration of the Rule 600 time period constitutes grounds for dismissal of the charges with prejudice.

Commonwealth v. Barbour, 189 A.3d 944, 947 (Pa. 2018).

In considering a Rule 600 motion, we are cognizant that the Rule “has the dual purpose of both protecting a defendant’s constitutional speedy trial rights and protecting society’s right to effective prosecution of criminal cases.” Commonwealth v. Bradford, 46 A.3d 693, 701 (Pa. 2012).  “To balance these rights, [Rule 600] requires the court to consider whether the Commonwealth exercised due diligence, and whether the circumstances occasioning the delay of trial were beyond the Commonwealth’s control.” Commonwealth v. Selenski, 994 A.2d 1083, 1088 (Pa. 2010).

We begin by acknowledging that the criminal complaint was filed on June 1, 2015; therefore, the mechanical run date pursuant to Rule 600 would have been May 31, 2016.  Defendant was arrested on June 20, 2018.  Clearly, the period of time between the filing of the criminal complaint and Defendant’s arrest exceeds the 365 day period prescribed pursuant to Rule 600.

Relevant to the matter sub judice, when a defendant has caused the delay, the period of delay will be excluded from the computation of time, including “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.” Pa.R.Crim.P. 600 cmt.  “In determining whether the Commonwealth has exercised due diligence, the courts have explained that 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.” Pa.R.Crim.P. 600 cmt. (citations omitted).

Defendant argues that the charges should be dismissed because 365 days have passed since the filing of the Complaint and the Commonwealth failed to exercise due diligence in locating Defendant in order to effect service of the criminal complaint or for the preliminary hearing.   Defendant contends that she was not aware of the pending charges against her until she discovered the bench warrant and subsequently turned herself in to police, which was 1,147 days after the filing of the criminal complaint.

Defendant claims that the Commonwealth made no effort to contact Defendant in Philadelphia even though it had considerable reason to believe that Defendant was in Philadelphia.  Furthermore, the North Lebanon Police Department failed to renew any efforts in the time between the filing of the criminal complaint in 2015 until the date on which Defendant turned herself in in 2018.  Defendant refers to the CPCMS information sheet listing her Philadelphia address that was printed in July of 2015 as evidence that the Commonwealth had sufficient knowledge of her current address to which adequate notice could have been served.  Defendant states that the Commonwealth’s lack of effort in attempting to properly serve notice of the charges demonstrates a lack of exercise of due diligence on part of the Commonwealth.  Therefore, Defendant contends that all time between the filing of the criminal complaint and when she turned herself in to police should be included in the computation of time for Rule 600 purposes.

The Commonwealth argues that the delay in bringing the matter to trial should be attributed to Defendant and, as such, excluded from the computation of the adjusted run date.  The Commonwealth contends that the Court’s determination should not be on the exercise of due diligence, but instead on whether defendant was properly notified of the proceedings.

The Commonwealth argues that the only address that Sergeant Herberg was aware of for Defendant, at the time of the incident, was the Jay Street address in Lebanon.  Furthermore, Father told Sergeant Herberg that Defendant was living at the Jay Street address.  The Commonwealth concedes that the certified service was not signed by Defendant, but claims that service on Defendant was proper because the first class service of summons, issued to the address believed to be Defendant’s official address, was not returned to the issuing authority within twenty days of its mailing.

The Commonwealth also argues that Defendant had constructive notice of the pending charges for two reasons.  First, Father informed Sergeant Herberg that he was in contact with Defendant through Facebook and through mobile phone.  When Sergeant Herberg asked Father to inform Defendant of the pending charges, Father agreed.  Second, while Philadelphia Police had Defendant detained, Sergeant Knight informed the Philadelphia Police that charges were pending and believed that the message would be passed along to Defendant.

The Commonwealth cites to the unreported Superior Court case of Commonwealth v. Richardson, No. 445 MDA 2013, 2013 WL 11250388, at 4 (Pa.Super. 2013) for persuasive value.  In Richardson, the Defendant argued that he had not received notice of the summons that was mailed to him because he was having issues receiving his mail.  The Court held that service of the summons was proper when the first class mailing of the summons was not returned to the issuing authority within 20 days of its mailing, pursuant to Pa.R.Crim.P. 511(B)(2).  Despite the Defendant’s claims, the Court found that the summons was mailed to an address that Defendant had explicitly provided to police while he was being booked after his arrest.  Furthermore, the Court stated that the Defendant knew of the pending charges and, if he was having issues receiving his mail, he should have informed the Commonwealth of those issues, but he failed to do so.

We disagree with the Commonwealth and find no persuasive value in Richardson as it applies to the matter at hand.  Several distinctions exist between the two cases.  First, in Richardson, the Defendant was arrested and booked and explicitly provided an address to which the Commonwealth later sent the summons.  Second, the Defendant’s arrest provided him with actual knowledge of pending charges against him and a reasonable expectation that he would receive notification of such charges.  Neither of the above-stated factual distinctions are present in this case.

We agree, in part, with the Commonwealth in that our first determination will need to focus on whether Defendant had notice of the pending charges and the preliminary hearing to which she was required to attend.  “[T]he general rule is that, where a period of delay is caused by the defendant’s willful failure to appear at a court proceeding of which he has notice, exclusion is warranted.” Commonwealth v. Baird, 975 A.2d 1113, 1118 (Pa. 2009).  Therefore, if it is determined that Defendant had notice of the pending charges or of the preliminary hearing, then the delay for her unavailability will be excluded from the computation of time.

We will begin with the Commonwealth’s assertion of constructive notice.  The testimony at the hearing on the motion revealed that at no point had the North Lebanon Township Police Department had direct contact with Defendant.  Sergeant Herberg testified that Father agreed to inform Defendant of the charges, but no testimony of Father was presented to indicate that he actually did inform Defendant of the pending charges.  Sergeant Herberg also testified that Sergeant Knight indicated in his report that he informed the Philadelphia Police that charges were pending against Defendant with the understanding that the message would be conveyed to Defendant.  Again, no testimony was presented at the hearing indicating that the Philadelphia Police, in fact, did inform Defendant of the pending charges.  Therefore, the Commonwealth’s argument as to constructive notice fails.

Next, we look at the Commonwealth’s argument that Defendant had actual notice by way of the summons sent through first class and certified mail.  The Commonwealth’s claim is premised on the idea that the Jay Street address was Defendant’s proper address for service.  The Commonwealth argues that Defendant was living at the Jay Street address when the crime was committed.  This was confirmed to Sergeant Herberg by Father.  If this is true, then the failure of the first class summons to be returned to the issuing authority would serve as proof of service. Pa.R.Crim.P. 511(B)(2).  However, this Court’s own review of the record revealed that official documents specifically referenced two home addressed for Defendant – the Jay Street address and a Philadelphia address.

Defendant claims she was in Philadelphia when the criminal complaint was filed and the testimony presented at the hearing indicated this to be true.  Sergeant Herberg testified that Defendant was detained by Philadelphia Police, that the stolen vehicle was found in Philadelphia and that the North Lebanon Police were unable to transport Defendant from Philadelphia to North Lebanon Township.  All indications demonstrate that Defendant was in Philadelphia.  Since the summons was sent to the Jay Street address, and all indications are that Defendant was living in Philadelphia, we must conclude that Defendant did not receive actual notice of the pending charges or the preliminary hearing.

However, our analysis does not end there.  The period of time between the filing of the criminal complaint and Defendant’s arrest may be excluded “provided that 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, 606 A.2d 901 (Pa. 1992).  The burden is on the Commonwealth to prove by a preponderance of the evidence that due diligence was employed in attempting to apprehend Defendant. Commonwealth v. Newman, 229, 555 A.2d 151, 155 (Pa.Super. 1989).  In considering due diligence, “[t]he actions [of police] must be judged by what was done, not by what was not done.” Commonwealth v. Cruz, 524 A.2d 507, 509 (Pa.Super. 1987), citing, Commonwealth v. Kaminski, 502 A.2d 1281 (Pa.Super. 1985). Furthermore, “efforts need only be reasonable and lack of due diligence should not be found simply because other options were available or in hindsight would have been more productive.” Id.

Sergeant Herberg testified that at the time of the filing of the criminal complaint, he believed that the Jay Street address was still Defendant’s legal residence and the address at which she would be living.  Therefore, no further efforts were made in attempting to locate or serve the criminal complaint on Defendant.  While Sergeant Herberg admitted that he was aware that Defendant was in Philadelphia after having been released by Philadelphia Police, he testified that he did not know specifically where in Philadelphia Defendant was staying.  Sergeant Seyfert testified that the sheriff’s department went to the jay Street address in order to serve the bench warrant and were notified by father that Defendant was in Philadelphia.  No further efforts were made to locate Defendant.

A review of the record, including the CPCMS Defendant Identification Information, printed July 1, 2015, indicates that an address is listed as a “home address” for Defendant at 3909 N. 9th Street, Philadelphia, PA, along with a corresponding telephone number.  The Commonwealth did not present any evidence that any attempt was made to serve Defendant or to locate her at the Philadelphia address.

Due diligence “does not demand perfect vigilance and punctilious care, but rather a reasonable effort.” Commonwealth v. Polsky, 426 A.2d 610, 613 (Pa. 1981).  Our Supreme Court has stated:

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).

Given the information available to police, as evidenced in the record and from the testimony at the hearing, we cannot conclude that due diligence was employed in the apprehension of Defendant.  Defendant was located in Philadelphia and the police knew that Defendant was being released through direct contact with the Philadelphia Police.  Father informed the sheriff’s department, upon execution of the bench warrant that Defendant was in Philadelphia and, after a search, Defendant was not located at the Jay Street address.  Critical to our determination, though, is the fact that an address in Philadelphia was plainly available to law enforcement and yet, no effort was made to locate or serve Defendant at that address.  Therefore, we determine that the period of time from July 1, 2015 through July 20, 2018 must be included in the computation of time pursuant to Rule 600.  Since this amounts to 1,115 days, it is clear that Rule 600 has been violated and we are compelled to grant Defendant’s Motion to Dismiss.  Accordingly, we will enter an order consistent with the foregoing.

 

 

 

[1] 18 Pa.C.S.A. § 3928(a)

[2] 75 Pa.C.S.A. § 1501(a)

[3] U.S. Const. amend. VI; Pa. Const. art. I, § 9.

[4] Rule 600 was originally adopted as Rule 1100 and renumbered to Rule 600 in 2012. Comment to Pa.R.Crim.P. 600.

 

 

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