COMMONWEALTH of Pennsylvania v. Tyrone COLLINS, Appellant.
Superior Court of Pennsylvania.
May 23, 1979.
404 A.2d 1320
Argued April 18, 1978.
Robert E. Colville, District Attorney, Pittsburgh, submitted a brief on behalf of Com., appellee.
Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT, SPAETH and HESTER, JJ.
PRICE, Judge:
This appeal arises from denial in the court below of appellant‘s motion in arrest of judgment and for a new trial following his conviction by a jury of aggravated assault1 and recklessly endangering another person.2 The sole issue on appeal is the propriety of the lower court‘s denial of appellant‘s pre-trial motion to dismiss based on the Commonwealth‘s alleged failure to comply with
Rule 1100(d) states in part that “[i]n determining the period for commencement of trial, there shall be excluded therefrom such period of delay at any stage of the proceedings as results from: (1) the unavailability of the defendant or his attorney; . . . .” The Comments to the rule, although not binding upon this court, have been utilized by us as a source of guidance. Commonwealth v. Byrd, 250 Pa.Super. 250, 378 A.2d 931 (1977). The Comment to Rule 1100 provides in part that
“For purposes of subparagraph (d)(1), in addition to any other circumstances precluding the availability of the defendant or his attorney, the defendant should be deemed unavailable for any period of time during which he could not be apprehended because his whereabouts were unknown and could not be determined by due diligence; . . . .”
While cases in this area do not abound, several decisions give us guidance in evaluating the prosecution‘s due diligence in locating a defendant. In Commonwealth v. Mitchell,
It was Mitchell‘s contention that this was insufficient to establish due diligence. He maintained that the prosecution could have located him because he received public assistance benefits and was for a time employed in his own name. The court determined that the Commonwealth had exercised due diligence, particularly when it was clear that Mitchell was actively concealing his whereabouts.
“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, supra, 472 Pa. at 566, 372 A.2d at 832.
Since Mitchell, this court has decided several other cases instructive on this issue. E. g., Commonwealth v. Jones, 256 Pa.Super. 366, 389 A.2d 1167 (1978); Commonwealth v. Martofel, 248 Pa.Super. 206, 375 A.2d 60 (1977).
In Martofel, police went to the appellant‘s place of employment to learn his address. They learned that he no longer lived at the address given, however, and proceeded to his sister‘s address. She had no knowledge of the appellant‘s whereabouts, but the police made numerous return trips to both addresses for the following month or so. The police asked that his employer inform them if the appellant appeared to collect back wages. Copies of the arrest warrant were sent to several local police departments. Martofel was ultimately arrested in a neighboring county when stopped for reckless driving. Former President Judge Jacobs, finding that the Commonwealth had satisfied the due diligence standard, said for a unanimous court:
“While the . . . [p]olice did not pursue every conceivable method by which they might have ascertained appellant‘s whereabouts, we are convinced that taking into consideration the manpower and investigatory means at their disposal, the police made a reasonable effort to find appellant. . . . To require already overtaxed police forces to expend a disproportionate amount of effort on locating an accused who has fled the area would deprive citizens of the necessary police protection.” Id., 248 Pa.Super. at 209, 375 A.2d at 61.
Again, in Commonwealth v. Jones, supra, we found that the record reflected the Commonwealth‘s required due diligence in apprehending the appellant. In Jones, an undercover narcotics sale was consummated. The police knew the appellant by a first name only. They went to his home, but he had moved. Known drug traffic areas in Harrisburg were repeatedly visited by the purchasing state trooper. In addition, photographs were obtained from the local police department. Finally, an informant aided a second state trooper in locating the appellant. Jones suggested numerous additional avenues of search that the prosecution could have pursued, but we declined to find the Commonwealth‘s failure to have proceeded by the appellant‘s suggested approach a lack of due diligence. We found that:
“Officer Petti‘s brief contact with appellant at the time of the sale afforded a very general description of appellant and knowledge of appellant‘s first name. Petti conducted numerous searches for appellant and finally identified him in a photograph. Supplied with his full name, the state police then collaborated with the Harrisburg Police Department, which cooperative effort still did not lead them to appellant. Finally, by circulating appellant‘s photograph to other state troopers, a successful contact was made and appellant was apprehended. Under the circumstances, we find that the Commonwealth exercised due diligence in locating appellant. Although the police could have pursued other avenues to locate appellant, that is not the controlling factor. It is simply not required that the Commonwealth exhaust every conceivable method of locating a defendant. Rather, reasonable steps must be taken.” Commonwealth v. Jones, supra 256 Pa.Super. at 373, 389 A.2d at 1170.
These cases contrast sharply with the one presently before us. The salient facts are these. Detective Robert Ieraci of Pittsburgh‘s robbery squad testified to the Commonwealth‘s efforts to locate appellant. On the day following the robbery, Officer Ieraci went to the area of the occurrence. There, some “people that loafed on the street [and] that knew the defendant” told the officer that the defendant had left town the night of the robbery. Officer Ieraci was also given several addresses, one of which was appellant‘s sister‘s and one his mother‘s. There was no response at either home, and the officer testified that no follow-up was undertaken. Finally, Mr. Joseph Snare, a state parole officer, got in touch with the robbery squad sometime in February 1977. Mr. Snare had the same two Pittsburgh addresses and a Windsor Street address of appellant‘s aunt in Philadelphia. In Mr. Snare‘s company, Detective Ieraci and his partner returned to appellant‘s mother‘s address. The trio spoke with appellant‘s mother who revealed that appellant was at the Philadelphia address and that, although he had just been home to Pittsburgh, had left the area again fearing for his
Appellant contends that both his county probation officer, Tom Dunlan, and his state parole officer, John Sawyer, were contacted by him in early January and that both knew he was in Philadelphia and had the Windsor Street address where he was finally arrested.
Although appellant, known as “Philly Dog,” had a police record and was on probation, the record reflects that no effort was made to secure information or cooperation of the probation and parole offices. No effort was made to secure cooperation of out-of-county police departments, even though the prosecution was aware from the start that appellant had fled after the criminal episode. Even after being informed by the state parole officer of the Philadelphia address, and the corroboration of appellant‘s presence there by his mother in February, Pittsburgh officials made no contact with Philadelphia authorities until two months later.
Although our focus in evaluating the Commonwealth‘s efforts to locate an accused must be steps taken by the prosecution rather than possibly meritorious efforts not undertaken, there simply is no effort reflected on the record before us. A single unsuccessful visit to the homes of two relatives, followed a month and one-half later by dropping one‘s card at the accused‘s mother‘s residence with a request to be contacted should the accused come calling, falls far short of due diligence. The Commonwealth in fact made no effort until the end of April, when Philadelphia police were finally contacted.
Judgment of sentence vacated and appellant discharged.
VAN der VOORT, J., dissents.
HESTER, J., files a dissenting statement.
JACOBS, former President Judge, and HOFFMAN, J., did not participate in the consideration or decision of this case.
HESTER, Judge, dissenting:
I dissent. The holding of the majority places an unjustified burden upon the Commonwealth.