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HomeMy WebLinkAbout91-1778 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA RAYMOND C. SABB 91-1778 CRIMINAL TERM IN RE: MOTION TO DISMISS PURSUANT TO PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 1100 BEFORE BAYLEY, J. ORDER OF COURT AND NOW, this -~"~ day of April, 2000, the counts of theft and receiving stolen property against defendant, ARE DISMISSED WITH PREJUDICE. Edgar B. Bayley, J. Mary-Jo Mullen, Esquire For the Commonwealth Gregory B. Abeln, Esquire For Defendant :saa COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. RAYMOND C. SABB 91-1778 CRIMINAL TERM IN RE: MOTION TO DISMISS PURSUANT TO PENNSYLVANIA RULE OF CRIMINAL PROCEDURE 1100 BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., April 5, 2000:-- Defendant, Raymond C. Sabb, is charged with counts of theft,~ and receiving stolen property? Both charges arise out of an incident on April 24, 1991, in which a motorcycle valued at approximately $5,000 was allegedly stolen from Yamaha of Camp Hill. Defendant filed a motion to dismiss both charges alleging a violation of the 365- day rule in Pa.R.Crim. P. 1100(a)(3). He claims that the Commonwealth did not exercise due diligence as required in Rule 1100(c), which provides: 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 ~ 18 Pa.C.S. § 3921. 2 18 Pa.C.S. § 3925. 91-1778 CRIMINAL TERM unknown and could not be determined by due diligence. (Emphasis added.) A hearing was conducted on March 28, 2000. We find the following facts. Lower Allen Township Police Officer, Samuel Morgan, filed a criminal complaint against defendant on April 26, 1991, charging him with theft and receiving stolen property. On the same day the officer lodged a warrant for defendant into the Harrisburg Metro System. In September, 1991, defendant's ex-wife told Officer Morgan that defendant was a heart patient in the Lehigh Valley Medical Center in Allentown, Pennsylvania. Officer Morgan called the hospital and was told that defendant was a patient. He then called a supervisor in the local police department in the jurisdiction where the hospital was located, and faxed him the warrant against defendant. The supervisor told Officer Morgan that the warrant would be served. Officer Morgan later learned that defendant left the hospital without the warrant having been served. On October 29, 1991, the Commonwealth filed a petition for leave to file an information against defendant. The petition was granted and the District Attorney filed an information on December 6, 1991. Defendant failed to appear in court for arraignment on December 10, 1991, and a bench warrant was issued for his arrest. The next thing to occur was that defendant simply appeared in this court on May 12, 1992. A public defender was appointed and he was ordered to appear for trial on June 8, 1992, and further to appear at a criminal pretrial conference on June 2, 1992. Bail was set at ROR. A further order was entered returning the case to a District -2- 91-1778 CRIMINAL TERM Justice "[f]or a setting and holding of a preliminary hearing as soon as reasonably possible." A preliminary hearing was conducted before the District Justice on July 9, 1992, and defendant was bound over to court. Defendant, who gave his address as 1612 Twentieth Street, Allentown, Pennsylvania, remained on ROR bail. Officer Morgan processed defendant on July 9, 1992, at the Lower Allen Township police station. On August 6, 1992, defendant was ordered to appear in this court for a pretrial conference on September 1, 1992, and further to appear for trial on September 14, 1992. Defendant failed to appear on September 1, 1992 and a bench warrant was issued for his arrest. On November 30, 1999, defendant was arrested in Vermont on the bench warrant issued from this court. He was allowed bail pending his appearance in this court where he did appear on March 1, 2000, and was arraigned. Dates for a pretrial conference and trial were set. He was allowed to remain on bail. The within petition was filed on March 9, 2000. Defendant has lived in Williston, Vermont for the last seven years. In early 1991, his marriage collapsed and he lost his job. He had been living in York, Pennsylvania, but by April 26, 1991, the date the complaint charging him with theft and receiving stolen property was filed, he was living in a homeless shelter in Harrisburg, Pennsylvania. He was not aware of these charges. A couple of weeks later he went to Allentown where he lived in a homeless shelter for about a week. He then moved into -3- 91-1778 CRIMINAL TERM his sister's house in Allentown and obtained a job. He had a heart attack in September, 1991, and was a patient in the Lehigh Valley Medical Center. While there he saw a note on his medical chart for a doctor to contact the police two days before his release. Notwithstanding that note, he was subsequently discharged from the hospital without being arrested. He returned to his sister's home and his job as a sous chief at the B & G Restaurant in Allentown. In May of 1992, he was stopped for speeding by a Pennsylvania State Police trooper who did a radio check and told him about the outstanding warrant in this case. That was the first knowledge defendant had of the charges. Defendant told the trooper that he would appear in Carlisle the next day and the trooper did not take him into custody. The next day, May 12, 1992, defendant appeared in this court. DISCUSSION In Commonwealth v. Webb, 278 Pa. Super. 599 (1980), a criminal complaint charging defendant with drug offenses was filed on December 17, 1974. The facts as set forth by the Superior Court were: Richard Morris, an agent of the Pennsylvania Department of Justice's Bureau of Drug Control, testified that he had accompanied a fellow agent, Stephen Todorec, to appellant's residence in Greensburg, Pennsylvania, in an attempt to execute the arrest warrant which had been issued on December 17, 1974. Agent Morris did not recall the date of his visit but stated that it was between December 17 and December 24. When the agents knocked on the door of appellant's residence, a woman answered but did not open the door. The agents identified themselves and stated that they had a warrant for appellant's arrest. The woman replied that appellant was not at home, and the agents left. Agent Morris testified that on another occasion he and Agent Todorec visited a shopping mall which -4- 91-1778 CRIMINAL TERM they knew appellant often visited. Agent Morris did not recall the date they went to the mall but testified that it was not the same day they had visited appellant's residence and that it was before December 25. The agents did not-find appellant at the mall. Agent Todorec testified that on at least one or two other occasions he went to the mall himself to look for appellant, but was unsuccessful. He did not recall the dates of the visits. On December 27, 1974, Agents Morris and Todorec arrested appellant on the sidewalk in front of his residence. Appellant testified at the PCHA hearing that he had lived at that residence for three or four years before his arrest. In reversing defendant's conviction and discharging him because of a violation of the then 185 day rule in Pa.R.Crim. P. 1101, the Superior Court concluded: In Commonwealth v. Mitchell, 472 Pa. 553 (1977), our Supreme Court described the approach to follow in ascertaining whether the police have exercised due diligence in attempting to apprehend an accused: It is not the function of our courts to second-guess the methods used by police to locate accused persons. The analysis to be employed is whether, considering the information available to the police, they have 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. Id., 472 Pa. at 566, 372 A.2d at 834. Our Court recently stated: It seems clear that the test is not a venture into hindsight reasoning as to whether if certain individuals have been contacted, or other things done, an arrest would probably have been made. The matter of availability and due diligence must be judged by what was done by the authorities rather than what was not done. The standard of due diligence demands only reasonable efforts. Commonwealth v. Hinton, 269 Pa. Super. 43, 50,409 A.2d 54, 57-58 (1979). See also Commonwealth v. Cohen, supra, 481 Pa. at 355, 392 A.2d at 1330 ('the Commonwealth [will] not be excused for a delay occurring because it failed to make a reasonable effort to locate the defendant'). For cases applying the due diligence standard, see, e.g., Commonwealth v. Mitchell, supra; Commonwealth v. Hinton, supra; Commonwealth v. Collins, 266 Pa. Super. 340, 404 A.2d 1320 (1979); Commonwealth v. Jones, 256 Pa. Super. 366, 389 A.2d 1167 (1978); Commonwealth v. Marfofel, 248 Pa. Super. 206, 375 A.2d 60 (1977). -5- 91-1778 CRIMINAL TERM We agree with appellant that the Commonwealth has not met its burden of proving that any of the delay in apprehending appellant is excludable pursuant to Rule 1100(d)(1). Although we must focus upon what the Bureau of Drug Control agents did rather than what they failed to do, we conclude that the agents did not exercise due diligence in attempting to apprehend appellant. The agents had no reason to believe that appellant was not living at his residence at the time the complaint was filed and the arrest warrant was issued. Nevertheless, the agents made only two visits to appellant's residence during a ten day period. We conclude that these visits, together with the visits to the mall, do not constitute reasonable efforts to apprehend appellant. (Emphasis added.) In the case sub judice, defendant maintains that when he appeared in court on May 12, 1992, the day after he learned of the charges against him, the requirement to bring him to trial within 365 days from the date of the filing of the complaint on April 26, 1991, which would have been by April 25, 1992, had already run because his whereabouts, although unknown to the police, could have been determined by due diligence. After Officer Morgan placed the warrant for defendant in the Harrisburg Metro system on April 26, 1991, the same day he filed the criminal complaint, nothing further occurred until September, 1991, when the officer was told by defendant's ex- wife that defendant was a heart patient in the Lehigh Valley Medical Center in Allentown. 3 When the arrangements Officer Morgan made with the local police department supervisor in Allentown to have defendant arrested did not occur he did 3 Officer Morgan did not testify as to how it came about that he talked to defendant's ex-wife in September, 1991. -6- 91-1778 CRIMINAL TERM nothing further." Notwithstanding, the Commonwealth notes that after defendant appeared in this court on May 12, 1992, and his case was sent to a District Justice for a preliminary hearing, no action was taken on the order directing defendant to appear in this court for a pretrial conference on June 2, 1992, and for trial on June 8, 1992, because the preliminary hearing was not held until July 9, 1992. When defendant thereafter failed to appear for a pretrial conference in this court on September 1, 1992, that constituted a waiver of Rule 1100 from that date forward. Commonwealth v. Steltz, 522 Pa. 233 (1989); Commonwealth v. Williams, 726 A.2d 389 (Pa. Super. 1999)? Based on that waiver as of September 1, 1992, the Commonwealth argues that Commonwealth v. Hill, 736 A.2d 578 (Pa. 1999), supports its position in that defendant is not entitled to a dismissal under Rule 1100 because (1) Officer Morgan entered the warrant for 4 Although the focus is on what Officer Morgan did, it is obvious that defendant's being a patient in the Lehigh Valley Medical Center was a good indication that he might be living in the Allentown area. Officer Morgan, however, did not (1) check with the hospital to determine the address that defendant had used when he was admitted, (2) check back with defendant's ex-wife to determine if there was someone she knew, like a relative in Allentown, with whom defendant might be living or who would know where he was living, or (3) check back with the local police department to see if they could locate defendant in the Allentown area. If he had pursued these leads he would undoubtedly have located defendant in Allentown where he was working and where he was living at his sister's residence. s Defendant not appearing in this court for arraignment on December 10, 1991, after the District Attorney had filed an information on December 6, 1991, did not constitute a waiver of Rule 1100 because he had not been arrested on the criminal complaint filed on April 26, 1991, and he did not know of the charges against him or of the order directing him to appear for arraignment. -7- 91-1778 CRIMINAL TERM defendant in the Harrisburg Metro system on April 26, 1991, and (2) he tried to have defendant apprehended in September, 1991, when after talking with defendant's ex- wife, he sought to have the local police in Allentown arrest defendant at the Lehigh Valley Medical Center. Therefore, the Commonwealth argues that the period between April 26, 1991, and some point in September, 1991, should be excluded from the running of the 356 days under Rule 1100(c)(1). We disagree. Unlike the present case, Hill did not involve a delay between the filing of the criminal complaint and defendant's arrest which falls under Rule 1100(¢)(1). Rather, the criminal complaint against Hill was filed a day after he was arrested without a warrant. Hill involved the amount of time excludable under Rule 1100 as a result of delay caused by the defendant's filing of pretrial motions after he was arrested. The Supreme Court of Pennsylvania concluded that a defendant is unavailable for trial if a delay in the commencement of trial is caused by the defendant filing pretrial motions. However, in order to establish that the delay is excludable the Commonwealth must demonstrate by a preponderance of the evidence that it exercised due diligence in opposing or responding to the pretrial motion. The Court stated: A review of the record reveals two instances in which the Commonwealth failed to exercise due diligence. The first instance occurred on May 12, 1995. The trial court had scheduled a proceeding for that day in order to set a date for a hearing on the motion to sever. Due to the unavailability of the Commonwealth, however, the trial court was forced to continue the proceeding until three days later. The second instance occurred on July 13, 1995. On that day, the trial court had planned to conduct a hearing on Hill's omnibus pretrial motion, but the Commonwealth requested a continuance, and, as a result, the hearing -8- 91-1778 CRIMINAL TERM was postponed until the following day. Considering these two instances together, the Commonwealth's failure to exercise due diligence resulted in a total delay of four days. Since the Commonwealth's lack of due diligence caused a four day delay, four days between May 2, 1994 and July 17, 1995 are not excludable from the Rule 1100 calculation. With the exception of these two instances, the record shows that the Commonwealth attended and was prepared for each of the hearings and other proceedings that were conducted by the trial court throughout this period. Thus, other than the two instances noted above, the Commonwealth was duly diligent during the period between May 2, 1994 and July 17, 1995. Consequently, the entire period, less four days, constitutes excludable time. In contrast, the issue in the present case is whether within three hundred sixty- - five days of the filing of the criminal complaint on April 26, 1991, defendant could not be brought to trial because his whereabouts were unknown and could not have been determined by due diligence. We conclude that Officer Morgan's actions did not constitute reasonable efforts to apprehend defendant. Consistent with Commonwealth v. Webb, supra, the 365 day period ran before defendant appeared in court on May 12, 1992, as no time is excludable under Rule 1100(c)(1) because defendant's whereabouts could have been determined by due diligence. Accordingly, the following order was entered. ORDER OF COURT AND NOW, this ~'""~' day of April, 2000, the counts of theft and receiving stolen property against defendant, ARE DISMISSED WITH PREJUDICE. -9- 91-1778 CRIMINAL TERM \ Edgar B. Bayley, J. Mary-Jo Mullen, Esquire For the Commonwealth Gregory B. Abeln, Esquire For Defendant :saa -10-