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Home My WebLink About00-0459 criminalCOMMONWEALTH IN THE COURT Of COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NICHOLAS EDWARD GIPE 00-0459 CRIMINAL TERM IN RE: MOTION OF COMMONWEALTH FOR CONTINUANCE BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this ~-~"'- day of May, 2000, the motion of the Commonwealth for a continuance of defendant's summary trial, IS GRANTED. Defendant is ordered to appear for trial in Courtroom Number 2, Cumberland County Courthouse, Carlisle, Pennsylvania, at 9:00 a.m., Tuesday, May 16, 2000. By/.the Court,.~:~ / Edgar B. Bayley, .~ Jaime Keating, Esquire For the Commonwealth Nicholas Edward Gipe, Pro se 4014 Concord Street Harrisburg, PA 17109 :saa COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NICHOLAS EDWARD GIPE 00-0459 CRIMINAL TERM IN RE: MOTION OF COMMONWEALTH FOR CONTINUANCE BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., May 1, 2000:- Defendant, Nicholas Edward Gipe, is charged with the summary offenses of illegally driving on the left side of a roadway, 75 Pa.C.S. Section 3306(a)(1), and driving without a valid driver's license, 75 Pa.C.S. Section 1501(a). Defendant appeared on April 25, 2000, for a trial de novo on his appeals from his convictions before a District Justice. At the time set for a hearing, the Commonwealth moved for a continuance based on the failure to appear for trial of the person who allegedly saw defendant drive, despite having been served with a subpoena by regular first-class mail. The letter containing the subpoena that was sent to this witness was not returned by the post office to the District Attorney. The witness had appeared and testified at the summary trial before the District Justice.' Defendant opposes the motion for a continuance by the Commonwealth. Defendant did not appear at his trial before the District Justice. 00-0459 CRIMINAL TERM The Judicial Code at 42 Pa.C.S. Section 5904, titled Subpoena of Witnesses, provides: (a) Method of service.rain addition to any other method of service provided by law, a subpoena may be served upon a witness in a criminal proceeding by registered or certified mail, return receipt requested, or by first class mail .... (c) Duration.--A subpoena shall remain in force until the termination of the criminal proceeding. (d) Bench warrants.mUpon proof of service of a subpoena, the court may issue a bench warrant for any witness who fails to appear in response to a subpoena. However, such warrant cannot be issued if service has been by first class mail. (Emphasis added.) Pa.R.Crim. P. 86(G), with respect to appeals from summary convictions, provides: When a defendant appeals after conviction by an issuing authority in any summary proceeding, upon the filing of the transcript and other papers by the issuing authority, the case shall be heard de novo by the appropriate division of the court of common pleas as the president judge shall direct. In appeals from summary proceedings arising under the Vehicle Code or local traffic ordinances, other than parking offenses, the law enforcement officer who observed the alleged offense must appear and testify. The failure of the law enforcement officer to appear and testify shall result in the dismissal of the charges unless: (1) the defendant waives the presence of the law enforcement officer in open court on the record; (2) the defendant waives the presence of the law enforcement officer by filing a written waiver signed by the defendant and defense counsel, or the defendant if proceeding pro se, with the clerk of courts; or (3) the trial judge determines that good cause exists for the law enforcement officer's unavailability and grants a continuance. In the case sub judice, the officer who filed the citations against defendant appeared at the scheduled hearing. He, however, did not observe defendant drive. The Commonwealth, in properly subpoenaing by regular first-class mail the witness it -2- 00-0459 CRIMINAL TERM maintains saw defendant drive, and who therefore is a critical witness and did appear under subpoena at defendant's trial before the District Justice, has complied with Section 5904 of the Vehicle Code. When a law enforcement officer who observes an offense fails to appear at atrial on a summary appeal then the case is to be dismissed, but even then the court, pursuant to Pa.R.Crim. P. 86(G), may grant a continuance when good cause exists. In Commonwealth v. Scott, 469 Pa. 258 (1976), the Supreme Court of Pennsylvania set forth the following factors to consider when considering a motion for a continuance because of the unavailability of a witness: (1) the necessity of the witness to strengthen the case; (2) the essentiality of the witness to the case; (3) the diligence exercised to procure the witness for trial; (4) the facts to which the witness would testify, and (5) the likelihood the witness will be produced if a continuance is granted. The first four factors support the grant of a continuance in this case. Although it is not known why the witness did not respond to the subpoena that was sent by regular first-class mail, the witness did appear before the District Justice. If a subpoena is now personally served on this witness we believe it is likely that the witness will appear for trial. We conclude that good cause as well as the interest of justice exists to grant the Commonwealth's motion for a continuance. Accordingly, the following order is entered ORDER OF COURT AND NOW, this" ~$~'-- day of May, 2000, the motion of the Commonwealth for a continuance of defendant's summary trial, IS GRANTED. Defendant is ordered to appear for trial in Courtroom Number 2, Cumberland County Courthouse, Carlisle, -3- 00-0459 CRIMINAL TERM Pennsylvania, at 9:00 a.m., Tuesday, May 16, 2000. By the~Cburt/ / ! Ed§ar B. Bayl~ J. Jaime Keating, Esquire For the Commonwealth Nicholas Edward Gipe, Pro se 4014 Concord Street Harrisburg, PA 17109 :saa -4-