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HomeMy WebLinkAbout01-1730 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA JOHN C. SHASKUS OTN: F050187-4 01-1730 CRIMINAL TERM CHARGES: (1) UNLAWFUL DEL. OR MANUF. OR POSS. WITH INTENT TO DELIVER SCHED. 1, CONTROLLED SUBST. (2) CRIM. CONSPIRACY TO UNLAWFUL DELIVERY OR MANUF. OR POSS. WITH INTENT TO DELIVER SCHED. 1, CONTROLLED SUBST. AFFIANT: AGENT RONALD DILLER IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., August 12, 2002. In this criminal case, following a jury trial presided over by the Honorable Kevin A. Hess of this court, Defendant John C. Shaskus was found guilty of unlawful possession with intent to deliver a controlled substance (marijuana)~ and of criminal conspiracy2 to do the same.3 On June 24, 2002, Defendant filed an appeal from the judgment of sentence.4 In Defendant's Concise Statement of Matters Complained of on Appeal, it was indicated that the sole ground for the appeal was that "the motion judge, J. Wesley Oler, Jr., erred when he denied the Defendant's [omnibus pre-trial] motion to ~ See Act of Dec. 6, 1972, P.L. 1482, § 1, 18 Pa. C.S. § 306 (2001); Act of Apr. 14, 1972, P.L. 233, § 13, as amended, 35 P.S. § 780-113(a)(30) (West 2001). ~ See 18 Pa. C.S. 903; 35 P.S. § 780-113. 3 N.T. 232-33, Trial, June 22-24, 2002. Defendant was sentenced by Judge Hess to pay to the costs of prosecution and to serve a period of imprisonment in a state correctional institution of twenty-seven to fifty-four months. See N.T. 7-8, Sentencing Hr'g, June 11, 2002. 4 See Def.'s Notice of Appeal, filed June 24, 2002. dismiss pursuant to Pennsylvania Rule of Criminal Procedure 600."5 The motion had been predicated on the contention that the period between the filing of the criminal complaint, in 1997, and the commencement of trial, in 2002, exceeded the time permitted by the prompt-trial requirements of Rule 600.6 This opinion is written in support of the denial of the motion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS A hearing on Defendant's omnibus pre-trial motion was held on December 27, 2001, at which time the Commonwealth offered the testimony of Agent Ronald L. Diller, a member of the Bureau of Narcotics Investigation of the Office of the Pennsylvania Attorney General with over thirty years of experience in various law enforcement capacities who had participated in the arrest of Defendant.7 Agent Diller's testimony may be summarized as follows: On July 12, 1995, while executing a search warrant for the residence of Roger House, who was suspected of drug offenses involving the possession and distribution of marijuana, law enforcement authorities from the Silver Spring Township Police Department in Cumberland County, Pennsylvania, and the Office of the Pennsylvania Attorney General discovered information that suggested the involvement of several others, including Defendant, in those offenses. Based on this information, on October 30, 1995, a statewide grand jury was established to investigate the suspected drug activities of "Roger House and his people [whom] he was selling to, as well as [to attempt] to determine his source of supply for marijuana.''8 5 Def.'s Concise Statement of Matters Complained of on Appeal, filed July 8, 2002; see also Order of Ct., Dec. 28, 2001. 6 See Def.'s Omnibus Pre-Trial Mot., filed Nov. 1, 2001. The motion also included a Motion to Suppress All Telephonic Interceptions, see Def.'s Omnibus Pre-Trial Mot., filed Oct. 25, 2001, which was later withdrawn, see Order of Ct., Dec. 27, 2001. 7 See N.T. 13-15, Pre-Trial Hr'g, Dec. 27, 2001 (hereinafter N.T. ). The court found Agent Diller's testimony entirely credible. 8 N.T. 15-17. 2 On June 19, 1997, based on information regarding links between the drug activities of Mr. House and Defendant, the grand jury issued a presentment against Defendant, as well as several others allegedly involved in the drug offenses. On October 2, 1997, Agent Diller filed charges against Defendant in which it was alleged that Defendant had "intentionally and knowingly on or about July 1994 through September 1995 [delivered] or possess[ed] with intent to deliver a controlled substance" and had conspired with others in furtherance of such acts.9 At the time of the filing of the criminal complaint, Agent Diller was in possession of information, obtained from the Connecticut State Police as part of the investigation by the grand jury, that suggested that Defendant resided at 62 Mechanics Street, Bristol, Connecticut. in the criminal complaint, Agent Diller listed this address as the one at which Defendant currently resided,l° However, Agent Diller was also in possession of information that suggested that Defendant's address had previously been 360 Oakland Street, Manchester, Connecticut. Il As a narcotics agent with the Office of the Pennsylvania Attorney General, Agent Diller was not "authorized to serve criminal complaints or to take any other law enforcement action outside the geographic boundaries of the Commonwealth of Pennsylvania.''12 Accordingly, on November 18, 1997, Agent Diller entered the information about Defendant and the outstanding warrant for his arrest with the National Crime information Center (hereinafter NCiC), which serves to notify law enforcement authorities of the existence of an outstanding warrant in another state. Soon thereafter, on November 20, 1997, Agent Diller notified the Bristol Police Department in Bristol, 9 N.T. 19-20; see also Commonwealth's Ex. 1, Pre-Trial Hr'g, Dec. 27, 2001 (hereinafter Commonwealth's/Def.'s Ex. ~. The charges were filed before District Justice Robert V. Manlove in Camp Hill, Cumberland County, Pennsylvania. Id. l0 N.T. 17-18; see also Commonwealth's Ex. i. ll N.T. 30. 12 N.T. 21. 3 Connecticut, of the outstanding warrant and mailed copies of the criminal complaint against Defendant to that department. ~3 On December 9, 1997, Agent Diller arrested another individual suspected to have participated in the same drug offenses with which Defendant was charged. In response to questioning about Defendant, the suspect stated that Defendant was likely located "in New York, Connecticut or Massachusetts." On approximately February 3, 1998, Mr. House was apprehended in Perry County, Pennsylvania, and, soon thereafter, was interviewed by Agent Diller with respect to his knowledge of the whereabouts of Defendant. However, Mr. House denied any knowledge of Defendant's current location. ~4 On approximately February 6, 1998, Agent Diller again contacted the Connecticut State Police in an effort to locate Defendant, but that department had no additional information.~5 On February 19, 1998, another individual allegedly involved in the aforementioned drug offenses was arrested in Silver Spring Township, Cumberland County, Pennsylvania. Agent Diller interviewed the individual shortly after his arrest, but, again, the suspect stated that he had no knowledge of Defendant's location. 16 In May 1998, Agent Diller contacted both the Connecticut State Police and the Bristol Police Department "to ask if they had had any contact with [Defendant]." The departments responded that they had no further information about Defendant and did not know his current whereabouts. ~7 On July 8, 1998, Agent Diller made contact with Defendant, using a Connecticut phone number obtained from a parole officer with the Cybulski Correctional Institution in Hartford, Connecticut, where Defendant had been held until late 1997.~8 Agent Diller ~3 N.T. 21-22. ~4 N.T. 22-23. ~5 N.T. 23. 16 N.T. 24-25. ~7 N.T. 25. ~8 N.T. 26, 35-36. 4 informed Defendant about the charges filed against him and the warrant for his arrest, "advised him to surrender, and requested him to surrender [to law enforcement authorities] in Pennsylvania.''~9 Defendant stated that he lacked sufficient funds to come to Pennsylvania, and Agent Diller told Defendant that he would seek approval to pay Defendant's travel costs. Because he was trying to obtain Defendant's surrender "amicably," Agent Diller did not question Defendant further about his current address during this call.2° Soon thereafter, Agent Diller obtained approval to pay the costs associated with Defendant's travel to Pennsylvania; however, he was unable to "make contact with [Defendant] again from that time forward.''2~ On July 22, 1998, Agent Diller again contacted the Connecticut State Police and the Bristol Police Department. However, neither department had any additional information. Between August 28, 1998, and May 23, 2001, Agent Diller made eleven more attempts to gain information by contacting both departments, and, each time, Connecticut law enforcement authorities reported that they had no further information regarding Defendant's whereabouts.22 During this time, Agent Diller also contacted a Connecticut branch of the Federal Drug Enforcement Administration as well as an informant residing in Manchester, Connecticut, but, despite repeated attempts, neither could provide any information regarding Defendant's current location.23 On July 1,2001, as a result of the aforementioned NCIC entry submitted by Agent Diller, Defendant was arrested by Connecticut law enforcement authorities. At this time, Defendant stated that his address was 73 Lawrence Street, East Hartford, Connecticut, which differed from both previous addresses identified by Agent Diller through his 19 N.T. 26-27, 37. 20 N.T. 26, 37. 2~ N.T. 26. 22 See N.T. 27-29. 23 N.T. 28-29. 5 investigation.24 On July 23, 2001, Defendant was returned to Pennsylvania by a private courier employed by the Office of the Pennsylvania Attorney General.25 At the hearing on the omnibus pre-trial motion, Defendant testified that, on October 2, 1997, the date of the filing of the criminal complaint, until November 6, 1997, he was incarcerated at Cybulski Correctional Institution in Hartford, Connecticut, and that, until April 1998, he was required by his parole status to report to a parole officer twice a week.26 According to Defendant, from January 1998 until January 2000, he was living continuously at one address, 81 Sisson Street, East Hartford, Connecticut, with his two children and his girlfriend. However, Defendant did not have a driver's license under that address.27 Defendant offered records from a telecommunication services provider, a gas service provider, a local workers' union, and the Internal Revenue Service from this period that identified 81 Sisson Street as Defendant's address. Defendant also testified that, from 1998 through 2001, he had been arrested for, charged with, and convicted of various offenses in Connecticut, including driving with a suspended license, larceny, and drug possession.28 With respect to the telephone conversation between Agent Diller and Defendant, Defendant testified that he had initiated the call after his parole officer had provided him with Agent Diller's phone number in February 1998. According to Defendant, Agent Diller asked if his parole officer would permit Defendant to leave Connecticut, offered to provide Defendant with a round-trip ticket to Pennsylvania, and requested that he call Agent Diller after Defendant had spoken with his parole officer.29 Defendant testified that, after his parole officer had told him that he could not leave Connecticut, he called Agent Diller and relayed this information. According to Defendant, Agent Diller said that 24 N.T. 29-30; see supra notes 10-11 and accompanying text. 25 N.T. 30. 26 N.T. 44-45. 27 N.T. 46, 64. 2a N.T. 46-55; see Def.'s Exs. 1-6. 29 N.T. 56-57. 6 he would try to get permission to come to Connecticut to speak with Defendant. When he called Defendant a week later, Agent Diller said that he had not received such permission but told Defendant that he "would be in touch." Defendant testified that Agent Diller did not contact him thereafter.3° On July 23, 2001, the same date that Defendant was returned to Pennsylvania, Defendant's preliminary arraignment was held, and, on August 8, 2001, the preliminary hearing was held. On October 2, 2001, Defendant's formal arraignment was held, at which time counsel for Defendant requested and was granted a continuance.3~ At the hearing on the pre-trial motion, counsel for Defendant stipulated that the period between October 2, 2001, and June 22, 2002, the date at which Defendant's case was called for trial, was excludable for purposes of Pennsylvania Rule of Criminal Procedure 600.32 From the date of the filing of the criminal complaint, on October 2, 1997, until the date of the commencement of Defendant's trial, on June 22, 2002, a total of 1,724 days elapsed.33 DISCUSSION Statement of Law Pennsylvania Rule of Criminal Procedure 600, which prescribes the requirements for a "prompt trial," provides, in pertinent part, as follows: [(A)] (3) Trial in a court case in which a written complaint is filed against the defendant.., shall commence no later than 365 days from the date on which the complaint is filed. (B) For the purpose of this rule, trial shall be deemed to commence on the date the trial judge calls the case to trial, or the defendant tenders a plea of guilty or nolo contendere. 3o N.T. 57-58. 3~ See N.T. 7-13; see al,'o Commonwealth's Exs. 1-3. 32 See N.T. 12-13; see al,'o N.T. 3, Trial, Jan. 22-24, 2002. 33 See Act of Dec. 6, 1972, P.L. 1339, § 3, 1 Pa. C.S. § 1908 (2001) (providing for computation of time), cited in Pa. R. Crim. P. 600 cmt. 7 (C) In determining the period for commencement of trial, there shall be excluded therefrom: (1) 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; (2) any period of time for which the defendant expressly waives Rule 600; (3) such period of delay at any stage of the proceedings as results from~ (a) the unavailability of the defendant or the defendant's attorney; (b) any continuance granted at the request of the defendant or the defendant's attorney. Pa. R. Crim. P. 600. "Common sense, the public interest, and justice demand that a defendant not be permitted the windfall of an absolute dismissal under [Rule 600] when he voluntarily absents himself from the jurisdiction, refuses to return, and due diligence by law enforcement authorities fails to secure his return." Commonrvealth v. Polslcy, 493 Pa. 402, 407-08, 426 A.2d 610, 613 (1981). To establish that a defendant could not be located despite "due diligence" by law enforcement authorities, the Commonwealth does not need to prove "perfect vigilance and punctilious care" on the part of those authorities, but needs to show only that they engaged in reasonable and steady efforts to locate the defendant. See Commonwealth v. Fisher, 545 Pa. 233, 245, 681 A.2d 130, 136 (1996) (quoting Polslcy, 493 Pa. at 407, 426 A.2d at 613). In deciding whether this standard has been met, courts should avoid "second-guess[ing] the methods used by police to locate accused persons" and should afford "[d]eference [to] the police officer's judgment as to which avenues of approach will be fruitful." Commonwealth v. Mitchell, 427 Pa. 553, 566, 372 A.2d 826, 832 (1977), cited in Commonwealth v. Hill, 558 Pa. 238, 253, 736 A.2d 578, 586 (1999). Commonwealth v. Fisher, which dealt with a factual situation analogous to the present case, is instructive with respect to application of the due diligence standard. In Fisher, the Pennsylvania Supreme Court affirmed the trial court's finding that police, throughout an eight-year period between the filing of the criminal complaint and the commencement of trial, had exercised due diligence in attempting to locate a murder suspect who had moved from Montgomery County, Pennsylvania, to New York City shortly after the commission of the offense. Fisher, 545 Pa. at 242-43, 245-46, 681 A.2d at 134-36. The Court stated: A review of the record reveals that local police authorities continued reasonable efforts to apprehend [the defendant] throughout his eight year absence. Local authorities submitted his name and description to a national wanted persons list, set up a stake-out upon reports that Appellant was returning to the area, followed up leads, and continued to interview witnesses, friends and families regarding the murder and [the defendant's] possible whereabouts. The authorities exercised due diligence, and thus, there was no error [in the trial court's denial of the defendant's motion to dismiss the charges pursuant to Pennsylvania's prompt-trial rule]. Id. at 246, 681 A.2d at 136. Application of Law to Facts In the present case, the court was of the view that the motion to dismiss should be denied because, of the 1,724 days between the filing of the criminal complaint and the commencement of trial, a period of 263 days was attributable to a continuance requested by Defendant and a period of 1,321 days was attributable to the inability of law enforcement officials, despite the exercise of due diligence, to ascertain Defendant's whereabouts outside Pennsylvania. With respect to the delay attributable to the defense continuance, counsel for Defendant stipulated at the pre-trial hearing that the 263-day period after the formal arraignment, on October 2, 2001, until the commencement of trial, on June 22, 2002, was excludable for purposes of Pennsylvania Rule of Criminal Procedure 600. See Pa. R. Crim. P. 600(C)(3)(b) (stating that, "[i]n determining the period for commencement of trial, there shall be excluded therefrom.., any continuance granted at the request of the defendant or the defendant's attorney"). The court found no reason to dispute this 9 position, and, as such, it is believed that this period was properly excluded for purposes of the prompt-trial calculation. With respect to the delay attributable to Defendant's presence outside Pennsylvania, the court was of the view that, from the time Agent Diller submitted Defendant's name to the NCIC, on November 18, 1997, until the apprehension of Defendant in Connecticut, on July 1, 2001, law enforcement activities represented a reasonable, consistent and continuing effort to locate Defendant. As stated previously, the due diligence standard does not require "perfect vigilance," but only that law enforcement authorities engage in reasonable and steady efforts to apprehend the suspect. See Fisher, 545 Pa. at 245, 681 A.2d at 136. In the present case, like the law enforcement authorities in Fisher, Agent Diller submitted Defendant's name to a national database of criminal suspects, interviewed numerous individuals suspected of participating in criminal activities with Defendant, made calls to Connecticut law enforcement officials on at least fifteen separate occasions, contacted the Federal Drug Enforcement Agency in Connecticut, and spoke with an informant in Connecticut, all in an effort to discover the location of Defendant, who knew that a warrant for his arrest was outstanding in Pennsylvania but remained in Connecticut. Thus, it is believed that, as in Fisher, these actions constituted due diligence on the part of law enforcement to locate Defendant. Cf. id. Although, with the benefit of hindsight, it is arguable that certain measures then available to Agent Diller could have resulted in an earlier apprehension of Defendant,34 "lack of due diligence should not be found simply because other options were available or, in hindsight, would have been more productive." Commonwealth v. Ingrain, 404 Pa. 34 See, e.g., supra note 28 and accompanying text (discussing that Defendant was arrested several times in Connecticut and was registered by several organizations, including the internal Revenue Service, under his then-current address). Although Agent Diller apparently did not ask for Defendant's current address during a phone conversation between the two, the court found entirely credible Agent Diller's explanation that he was attempting to effectuate an "amicabl[e]" return of Defendant. See, e.g., Commonwealth v. Neal, 387 Pa. Super. 165, 168, 563 A.2d 1236, 1238 (1989) (stating that it is the province of the trial court to determine the credibility of witnesses in pre-trial hearings). 10 Super. 560, 567-68, 591 A.2d 734, 737 (1991). The court was of the view that Agent Diller's actions, at the time they mere taken, represented reasonable efforts to locate Defendant and to secure his return to Pennsylvania. Further, the court is hesitant to reject, without substantial reason for doing so, the reasoned judgment of a law enforcement agent with thirty years of experience in the field as to the proper means to secure the return of an out-of-state criminal suspect. In the court's view, the Commonwealth established that the conduct of law enforcement authorities in this case constituted due diligence, and, accordingly, it was appropriate to exclude, for purposes of Rule 600, the 1,321-day period during which Defendant's whereabouts were unknown despite the efforts of law enforcement. Based on the exclusion of a total of 1,584 days from the 1,724-day period between the filing of the criminal complaint and the commencement of trial, the accountable period under Rule 600 in this case was 140 days, clearly within the 365-day period permitted under that Rule. As such, it is believed that the denial of Defendant's motion was properly entered. BY THE COURT, J. Wesley Oler, Jr., J. Shawn C. Wagner, Esq. Deputy Attorneys General Asset Forfeiture and Money Laundering Section Strawberry Square Harrisburg, PA 17120 Jaime M. Keating, Esq. Chief Deputy District Attorney Ellen K. Barry, Esq. First Assistant Public Defender 11