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COMMONWEALTH PENNSYLVANIA v. ROBERTO CRUZ (04/13/87)

filed: April 13, 1987.

COMMONWEALTH OF PENNSYLVANIA
v.
ROBERTO CRUZ, APPELLANT



Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 8509-266, 267, 269, 270.

COUNSEL

Colie B. Chappelle, Philadelphia, for appellant.

Leonard Deutchman, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cirillo, President Judge, and Tamilia and Cercone, JJ.

Author: Tamilia

[ 362 Pa. Super. Page 285]

Appellant was found guilty of second degree murder, robbery, possessing an instrument of crime and conspiracy. He was sentenced to life imprisonment on the murder conviction with concurrent sentences imposed on the possessing an instrument of crime and conspiracy convictions.

The facts, as set forth by the lower court, indicate that on September 9, 1981, appellant and a co-conspirator robbed a milkman at riflepoint. Appellant shot the milkman in the chest resulting in his death. Appellant was interviewed by the police on that day at which time he asserted that the co-conspirator was the shooter and disavowed participation in the robbery. Appellant was released and subsequently fled the jurisdiction. Further investigation led the police to believe appellant was involved in the robbery, a warrant was issued for his arrest, and he was ultimately located in Florida in May of 1985. Appellant was returned to Philadelphia on June 14, 1985 where he was tried and convicted.

Appellant raises four issues for our review. Initially, he maintains that the case should have been dismissed because of a violation of Pa.R.Crim.P. 1100. This argument is grounded on the contention that the Commonwealth failed to present evidence to indicate when the appellant moved to Florida and since he could possibly have been located in Philadelphia, the "due diligence" test was not met.

We find no basis to support a finding that the court erred in failing to dismiss this case for a violation of Rule 1100. The Commonwealth had the burden of proving by a preponderance of the evidence that due diligence was employed in attempting to apprehend appellant. Commonwealth v. Kaminski, 349 Pa. Super. 78, 502 A.2d 1281 (1985); Commonwealth v. Branch, 337 Pa. Super. 22, 486 A.2d 460 (1984).

[ 362 Pa. Super. Page 286]

In determining whether the police acted with due diligence, a balancing process must be employed where the court, using a common sense approach, examines the activities of the police and balances this against the interest of the accused in receiving a fair trial. Branch, supra; Commonwealth Page 286} v. Winn, 327 Pa. Super. 296, 475 A.2d 805 (1984).

The actions must be judged by what was done, not by what was not done. In addition, the 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. Kaminski, supra; Commonwealth v. Faison, 324 Pa. Super. 406, 471 A.2d 902 (1984).

The testimony presented indicates that the police made various attempts to locate appellant in the Philadelphia area by visiting addresses they believed to be appellant's residence, those of relatives, his girlfriend and a local pool hall. (N.T. 11/21/85, pp. 37-45). The F.B.I. was contacted to assist in apprehending appellant and they undertook activities in Boston, Puerto Rico and Florida in an attempt to locate appellant. (N.T. 11/21/85, pp. 111-116). Appellant's name was entered into local and national ...


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