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December 29, 1981


No. 93 Harrisbury, 1980, Appeal from the Judgment of Sentence dated March 20, 1980, Court of Common Pleas, Criminal Division, Perry County, at No. 51 of 1979.

Before Price, Johnson, and Shertz, JJ. Price, J., did not participate in the consideration or disposition of this case.

Per Curiam:

The judgment of sentence dated March 20, 1980 is affirmed on the comprehensive opinion of Judge Quigley.

PRICE, J., did not participate in the consideration or disposition of this case.

No. 93 Harrisburg, 1980



CRIMINAL NO. 51 of 1979


In this appeal from judgment of Sentence entered by this Court on March 20, 1980, Defendant does not challenge his guilt for the offenses of forcible rape, simple assault, and the corruption of minors committed on August 19, 1978, in Rye Township, Perry County, Pennsylvania. Rather, Defendant has limited the issue on appeal to whether or not he should have been discharged as a result of the Commonwealth's alleged failure to comply with the provisions of Rule 1100 of the Rules of Criminal Procedure.

Trooper Donald L. Harriman of the Duncannon Sub-station of the Pennsylvania State Police on August 20, 1978, filed a criminal complaint to initiate this action. February 16, 1979, would be the date one-hundred eighty (180) days from August 20, 1978. The case was tried on June 8, 1979, a period of one-hundred (112) days beyond the time within which trial should ordinarily commence. Defendant on June 1, 1979, filed a motion for dismissal of charges alleging a violation of one-hundred eighty (180) day rule, the Commonwealth previously on April 21, 1979, having filed a motion for extension of time for trial.

On March 16, 1979, the Commonwealth filed a second complaint against the Defendant being identical to the original complaint of August 20, 1978. This was apparently done by the Commonwealth to attempt to avoid the effect of Rule 1100, although the Commonwealth has always argued and did argue at the early stages of this proceeding that the Defendant had been unavailable for protracted periods of time and was not able to be located by the Commonwealth even in the exercise of due diligence. While we have some question as to the procedure generally, we think that if this prosecution is to survive it must do so on the basis of the initial prosecution since we believe it is clear that once the period for trial has expired new life cannot be breathed into that period by subsequent filing of papers. Commonwealth v. Jones, 256 Pa. Super 366, 389 A.2d 1167 (1978).

Accordingly, since the Commonwealth's motion for extension was not timely filed we will discuss the question as to whether or not the Defendant or his attorney was unavailable and whether or not the Commonwealth exercised due diligence.

It is now well accepted that the Commonwealth has the burden of proving by the preponderance of evidence that the defendant was unavailable and that the police had used due diligence to discover his whereabouts during the period of unavailability. Commonwealth v. Mitchell, 472 Pa. 553, 372 A.2d 826 (1977). However, it is not the function of the courts to second guess the methods used by the police to locate the accused person. Rather, "the analysis to be employed is whether, considering the information available to the police, they 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. Hinton, Pa. Super , 409 A.2d 54 (1979); Commonwealth v. Jones, 256 Pa. Super 366, 389 A.2d 1167 (1978); Commonwealth v. Mitchell, supra.

As the Superior Court has most recently stated, "[i]t is simply not required that the Commonwealth exhaust every conceivable method of locating defendant. Rather, when reasonable steps are taken, the requirement of due diligence is met." Commonwealth v. Hinton, supra.

A hearing was held on June 4, 1979, to inquire into the Rule 1100 issue. It was developed at said hearing that the Officer filed the complaint on August 19, 1978, and then was unable to serve the warrant because he was unable to locate the Defendant. His efforts initially consisted of attempting to find the Defendant at his father's place which was the last address known to the Officers. Other troopers in the Sub-station also attempted to locate the Defendant. Trooper Harriman also spoke with members of the Defendant's family who were residents of the area.

In addition to local efforts the Officer dispatched a state-wide teletype containing usual information and indicating that the Defendant was wanted for the offenses for which he was later convicted. The Officer on or about the same date also attempted to enter the teletype into the uniscope machine at the Duncannon Sub-station which would have caused the arrest request to be circulated nationwide. Later, the Officer learned that due to a malfunction in the uniscope machine, the nationwide message apparently was not sent and was re-entered on the 10th of October, 1978.

The Officer also apparently checked with the Bureau of Motor Vehicles in an attempt to secure an address and apparently through that source of information discovered that the address on the Defendant's operator's license consisted of a vacant lot.

On October 15, 1978, the Officer came into possession of a letter from an inmate at Thibodaux, Louisiana, wherein said inmate referred to a certain "Junior Gallagher" as his cell mate. Satisfied that Junior Gallagher was, in fact, the wanted Defendant, the Officer telephoned the prison authorities immediately and was advised that the Defendant had been released approximately eight (8) days previous to the call. However, previous to the aforesaid letter, the Officer had received information that the Defendant might be in prison somewhere in Louisiana. The Officer sent a teletype to the Louisiana State Police on the 28th of September, 1978, with the request that the jails be checked, but a reply was never received. Said letter from the cell mate of the Defendant, although dated October 15, 1978, was not turned over to the Trooper until sometime between the 10th and 20th of November, 1978, and it was at that time the telephone call to Thibodaux, Louisiana, was made.

The next contact was on or about the 12th of March, 1979. This was the result of a contact from the Perry County Domestic Relations Office indicating that the Defendant had forwarded a support check to its office with a return address on the envelope. On the 14th of March, 1979, an Officer in Louisiana advised that the Defendant was in the area and that he had been picked up on the 20th of March. On April 3, 1979, Trooper Harriman and another Officer of the Pennsylvania State Police journeyed to Louisiana and retrieved the Defendant.

On cross examination it was developed to the Court's satisfaction that the local efforts of Trooper Harriman and the Officers of Duncannon Sub-station to locate the Defendant were reasonable and sufficient because it was clear to the Court that the Defendant's own family was very much interested in locating the Defendant and in fact cooperated in reporting sightings in the early days of the Defendant's fugitive status. The Police routinely responded to the sighting reports but were never able to apprehend the Defendant. Thus, any inference that the Officers were less than diligent in not frequently contacting Defendant's family members is negated because of the reasonable belief that the family would have contacted the Officers had they had a contact from the Defendant. Nevertheless, there were periodic contacts with the Defendant's family, all negative.

On cross-examination the Defendant indicates that he did not have any regular contact with members of his family in the Perry County area until he got to Louisiana which he says was around the middle of September, 1978. At that time he allegedly corresponded with his children and provided a return address. Defendant also stated that he apparently wrote to his father in Perry County at or about late September or early October, 1978.

In response to his Attorney's questions as to why he left Perry County, the Defendant indicated that he had some bad checks and wanted to get some money so he could pay them. On cross-examination of the Defendant it was developed that he did not notify anyone locally of his leaving the Perry County area.

At the conclusion of the hearing, the Court in a two-page summary at the conclusion of which the Rule 1100 motion was dismissed, discussed the issues involved and concluded that the Defendant was in fact, unavailable at least through November and probably unavailable until his arrest by Louisiana authorities on Pennsylvania charges. In review of the entire case we feel the later interpretation is clearly the most reasonable under all circumstances and accordingly find that the Defendant did not become available to the Pennsylvania authorities until his arrest by the Louisiana authorities on March 20, 1979. So calculated, the period from the date of offense to March 20, 1979, must be excluded from the one-hundred eighty (180) day period and accordingly on that basis the trial was timely. Insofar as due diligence is concerned, we think the Commonwealth Officers exercised due diligence under all circumstances and to adopt any higher standard for Police Officers in their attempt to locate fleeing felons would in effect, as the Court stated on the day of the hearing, offer substantial encouragement to all criminal suspects to flee the area. Accordingly, we had no difficulty, and still have no difficulty in concluding that the Commonwealth exercised due diligence and timely tried the Defendant.



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