Loading...
HomeMy WebLinkAbout01-2230 criminalCOMMONWEALTH OF : IN THE COURT OF COMMON PENNSYLVANIA : PLEAS OF CUMBERLAND : COUNTY, PENNSYLVANIA : : 01-2230 CRIMINAL v. : CHARGE: : 1. DRIVING UNDER THE : INFLUENCE : 2. UNDERAGE DRINKING BRADLEY MICHAEL BARNHART : 3. CARELESS DRIVING : : AFFIANT: TPR. RICHARD . : WALBRIDGE : ,,,~,)~_RDER OF COURT day of APRIL 2002, Defendant's Motion to Dismiss AND NOW, this~___ Pursuant to Pa. Rule of Criminal Procedure 600 is DENIED. By the Court, Michelle H. Sibert, Esquire Office of the District Attorney For the Commonwealth Jessica B. Rhoades, Esquire Office of the Public Defender For the Defendant · COMMONWEALTH OF · IN THE COURT OF COMMON PENNSYLVANIA ' PLEAS OF CUMBERLAND · COUNTY, PENNSYLVANIA · 01-2230 CRIMINAL . v. ' CHARGE: · 1. DRIVING UNDER THE · INFLUENCE · 2. UNDERAGE DRINKING BRADLEY MICHAEL BARNHART · 3. CARELESS DRIVING · AFFIANT: TPR. RICHARD .- ' WALBRIDGE OPINION AND ORDER Before this Court is the defendant's Motion to Dismiss pursuant to Pa. R. Crim. Pro 600. For the following reason the defendant's motion is hereby denied. Factual Backqround The defendant has accepted the Commonwealth's version of the facts as set forth in the Commonwealth's Memorandum of Law. Therefore, the court adopts the facts as stated in the Commonwealth's Memorandum and incorporates them herein. The defendant, Bradley Michael Barnhart, was stopped on November 11, 1999, by Trooper Walbridge for a violation of the vehicle code. During the traffic stop, Trooper Walbridge determined that the defendant was intoxicated to the extent that he could not drive safely. The defendant submitted to a breath test, was given his breath ticket and was told by the trooper that charges would be filed,, including a charge for Driving Under the Influence. During the traffic stop Trooper Walbridge learned that the defendant's address was 147 Marbeth Avenue in Carlisle, Cumberland County. This was the only address ever provided to the trooper by the defendant. Trooper Walbridge filed a complaint with District Justice Day, in Mt. Holly Springs, Cumberland County, on November 29, 1999, charging the defendant with: (1) Driving Under the Influence; (2) Underage Drinking; and (3) Careless Driving. The complaint and notice of a preliminary hearing date for January 11, 2000, were sent certified mail to the defendant at 147 Marbeth Avenue in Carlisle, Cumberland County. The post office attempted service on December 2, 1999, December 7, 1999 and December 17, 1999. The defendant never signed for the complaint and preliminary hearing notice, so both were returned to District Justice Day, unclaimed. On January 3, 2000, District Justice Day issued a warrant for the defendant's arrest. On July 11, 2000, the D.J.'s warrant was entered into the Pennsylvania State Police system. On August 10, 2000, Trooper Walbridge attempted service of the warrant on the defendant at 147 Marbeth Avenue without success. On October 25, 2000, Trooper Walbridge again attempted service of the warrant on the defendant at 147 Marbeth Avenue without success. This same day Trooper Walbridge verified the defendant's address with Penn Dot. On January 6, 2001, Trooper Walbridge entered the D.J.'s warrant into the NCIC and Clean systems. On January 21, 2001, Trooper Walbridge again verified the defendant's 147 Marbeth Avenue address with Penn Dot only to discover that the defendant's : license had been suspended. On May 2, 2001, Trooper Maxey attempted to serve the warrant on the defendant at 147 Marbeth Avenue without success. The trooper did speak with the defendant's aunt who gave the trooper a Camp Hill address for the defendant's mother. Trooper Maxey did not attempt service at this Camp Hill address. A week or two after May 2, 2001, Trooper Walbridge received the defendant's cell phone number and called the defendant. The defendant was told that a warrant had been issued for his arrest and that he should turn himself in to the District Justice's office. The defendant never turned himself in. On September 16, 2001, the defendant was arrested in Mechanicsburg during a routine traffic stop. He was arraigned that day, and a preliminary hearing was scheduled for September 25, 2001, rescheduled until October 3, 2002, and rescheduled again to October 24, 2002. The defendant waived all charges at the October 24, 2001 preliminary hearing. On December 18, 2001, the defendant was formally arraigned on the above-captioned charges and a trial was set for the March 2002 term of court. The defendant requested that the trial be moved from March to the May 2002 term. Discussion Before this court are two issues. The first is whether the Commonwealth has waived its argument with regard to prejudice because the Commonwealth failed to raise the issue. The second is whether the Commonwealth exercised "due diligence" in attempting to apprehend the defendant. The Defendant's Right to A Speedy Trial Was Not Prejudiced. The defendant contends that the Commonwealth has waived its argument with regard to prejudice because the Commonwealth failed to raise the issue. Although the defendant raises the issue of the Commonwealth's waiver, he fails to make an argument as to how he was prejudiced. However, even if the defendant had properly addressed the issue, on the facts and circumstances of the present case, there was no violation of the defendant's right to a speedy trial. See, e.g., Commonwealth v. DeBlasP,, 665 A.2d 427 (1995){stating the rule for determining whether a defendant's constitutional right to a speedy trial was violated). The DeBlase court, borrowing from the United States Supreme Court, states that "prejudice to the defendant, in the evaluation of a speedy trial claim, must be assessed within context of the interests which speedy trial rights protects: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused's anxiety and concern; and (3) limiting impairment of the defense." 665 A.2d at 236. The third factor represents the most serious of these concerns. Id. None of these factors are implicated in the present case. Therefore, the court cannot find that there was any prejudice to the defendant because of the delay. The Commonwealth Exercised Due Diligence In Attempting to Locate the Defendant. The Commonwealth did not violate Rule of Criminal Procedure 600 even thought it took more than 365 days to locate and arrest the defendant. Pa. R.Crim. P. 600(A)(3) states: Trial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed. Although the complaint was filed on November 29, 1999, the defendant was not arrested until September 16, 2001. The only time at issue, however, is from July 11, 2000 to September 16, 2001. Section (C)(1) of Rule 600 states: In determining the period for commencement of trial, there shall be excluded therefrom the period of time between the filing of the written complaint an.d 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 .... The Commonwealth argues that Rule 600 has not been violated because the defendant was unavailable and the police acted with due diligence in attempting to apprehend him. Therefore, the 431 days between July 11, 2000 and September 16, 2001 should be excluded from the Rule 600 calculation of time. The defendant argues that the period between July 11, 2001 and September 16, 2001 should not be excluded because the Commonwealth did not exercise due diligence in attempting to apprehend him. He argues that in the 14 months between July 11, 2001 and the his arrest, that the police made very few efforts to locate him and that the actions they did take do not constitute due diligence. We disagree. Pennsylvania Courts have articulated the test for determining whether the police have exercised due diligence in attempting to apprehend the defendant. 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. The actions must be judged by what was done, not by what was not done. Commonwealth v. In.qram~ 404 Pa. Super. 560, 567-68, 591 A.2d 737, 737 (1991). "The due diligence required of the police does not demand perfect vigilance and punctilious care, but rather a reasonable effort." Commonwealth v. .Laurie, 334. Pa. Super. 580, 583,483 A.2d 890, 892 (1984). Between July 11, 2000 and September 16, 2001, the police attempted to serve the warrant at defendant's known address three times, they verified that address twice and entered the warrant into the NClC and Clean Systems. In addition, Trooper Walbridge obtained the defendant's cell phone number, called him, told him about the warrant, and advised the defendant to turn himself in. The defendant argues that the actions of Troopers Walbridge and Maxy do not constitute due diligence. However, applying the standard from In.qram to the present case, we are satisfied that the police exercised due diligence. The Superior Court has recognized that: [T]he police cannot investigate every crime with the promptness as thoroughness that would be desirable. Too many crimes are committed. The police must therefore make choices, devoting more attention to some crimes that to others, and forgoing some lone of inquiry that they would pursue if they had more resources. Laurie, 334 Pa.Super. at 584, 483 A.2d 890, 892 (1984). The Rule 600 inquiry as to the due diligence of the police is not "whether they did all they could have done," but "whether what ~they did do was enough to constitute due diligence." Laurie, 334 Pa.Super. at 584, 483 A.2d 890, 892. Looking at the facts and circumstances of the case at bar, undoubtedly, as in almost any case involving pre-arrest delay, we can say that the police could have done more. .Id. However, here, where the police attempted several times to serve the warrant at the defendant's address, verified that address twice, entered the warrant into the NCIC and Clean systems and actually spoke with the defendant on his cell phone, their actions constitute due diligence. Therefore, the Commonwealth has shown by a preponderance of the evidence that the police exercised due diligence. 7