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HomeMy WebLinkAbout98-1666 criminalCOMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JAMIE M. AVERY : NO. 98-1666 CRIMINAL TERM : : IN RE: DEFENDANT'S MOTION FOR DISMISSAL UNDER PA. R. CRIM. PROCEDURE 1100 BEFORE GUI DO, J. ORDER OF COURT AND NOW, this day of MARCH, 1999, Defendant's Motion to Dismiss Pursuant to Pa. R. Crim. P. 1100 is DENIED. Edward E. Guido, J. District Attorney William Braught, Esquire For the Defendant :sld COMMONWEALTH OF PENNSYLVANIA : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : Vo : JAMIE M. AVERY : NO. 98-1666 CRIMINAL TERM : : IN RE: DEFENDANT'S MOTION FOR DISMISSAL UNDER PA. R. CRIM. PROCEDURE 1100 BEFORE GUIDO, J. OPINION AND ORDER OF COURT This case is before us on Defendant's Motion to Dismiss pursuant to Pa. R. Crim. P. 1100. A non-jury trial was scheduled for February 19, 1999. By agreement of the parties the hearing on Defendant's Motion to Dismiss was consolidated with the non- jury trial. At the conclusion of the trial the parties each submitted a memorandum in support of their position on the Rule 1100 motion. We agreed to dispose of that motion before entering a verdict on the underlying charges. For the reasons hereinafter set forth, Defendant's Motion to Dismiss is DENIED. FINDINGS OF FACT 1) On the early morning hours of August 23, 1997 Officer Brian Kluck responded to a complaint regarding a motor vehicle running amuck on the Cumberland Valley School complex in Silver Spring Township, Cumberland County, Pennsylvania. 2) The officer found the Defendant driving his vehicle around the track used for track and field events. 3) The officer also noticed damage throughout the complex which had apparently been· caused by Defendant's vehicle. The damage included numerous trees that had been knocked down. NO. 98-1666 CRIMINAL TERM 4) When the officer asked Defendant what he was doing, he responded that he turned into the complex from the Pike and got lost.~ 5) The Defendant was obviously intoxicated. The officer took him onto custody and he was eventually taken to the Central Booking Center to be processed on these charges. 6) At the booking center the Defendant gave his address as 206 Capital Hill Road, Dillsburg, Pennsylvania. However, both his license and registration, which was copied by the booking center personnel, showed his address as 2509 Mill Road, Mechanicsburg, Pennsylvania. 7) The criminal complaint was filed on August 28, 1997. 8) A summons was sent to Defendant at his 206 Capital Hill Road address by certified mail. Attempts were made to deliver the summons on August 29, September 4 and September 13, 1997. The summons was returned "unclaimed." 9) On September 23, 1997 the District Justice executed a warrant for Defendant's arrest. 10) Officer Kluck received a copy of the warrant and a copy of the booking center information which included Defendant's address at 206 Capital Hill Road. The booking center information also included a photocopy of Defendant's license and registration which showed an address of 2509 Mill Road, Mechanicsburg, ~The only access to the Cumberland Valley School complex is from U.S. Route 11, commonly referred to as the Carlisle Pike, or the Pike. NO. 98-1666 CRIMINAL TERM Pennsylvania. It also contained the name of his purported employer in Carlisle. 11) At some point in time the warrant was entered into the metro system. 12) During his routine patrols Officer Kluck was on the lookout for Defendant. He describes Defendant's vehicle as being unique. On one occasion he stopped a vehicle he thought belonged to Defendant, but he was mistaken. 13) On March 11, 1998 Officer Kluck attempted to serve the warrant at Defendant's Dillsburg address. He was advised by the landlord that Defendant had moved and left no forwarding address. He also questioned a neighbor who did not know the whereabouts of the Defendant. 14) On July 8, 1998 the Defendant was stopped by another Silver Spring Township police officer for an unrelated vehicle violation. As a result of the warrant, which turned up as part of a routine check of the metro system, Defendant was arrested. 15) Defendant was processed and released on bail. 16) A preliminary hearing was scheduled for September 23, 1998. At the time scheduled for the hearing, the Defendant waived the charges into Court. 17) Defendant was formally arraigned on October 20, 1998 at which time he was directed to appear for trial on January 5, 1999. 18) On January 5, 1999 the Defendant waived his right to a jury NO. 98-1666 CRIMINAL TERM trial, which waiver was concurred in by the Commonwealth. At that time Defendant was directed to appear before this Court for a non-jury trial on February 19, 1999. 18) On January 13, 1999 the Defendant filed the instant Motion to Dismiss. A hearing on said motion was also scheduled before this Court on February 19, 1999. 19) Defendant had been incarcerated in the York County Prison from September 5, 1997 until January 9, 1998. 20) After he was paroled from the York County Prison, Defendant's supervision was transferred to the Cumberland County Probation Department commencing on February 23, 1998. DISCUSSION The relevant portions of Rule 1100 provide as follows: RULE 1100 . PROMPT TRIAL · · · (3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed. (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 ... Pa. Rule of Criminal Procedure 1100. Obviously the trial in this matter commenced more than 365 days after the written complaint was filed. The issue is whether NO. 98-1666 CRIMINAL TERM the time between the filing of the complaint on August 28, 1997 and Defendant's arrest on July 8, 1998 is excludable under Pa. R. Crim. P. 1100(c)(1). The Defendant argues that the time is not excludable since the Commonwealth did not use due diligence in its attempts to apprehend him. He points to any number of things the Commonwealth could have done to apprehend him, many of which are listed on the "Warrant Due Diligence Worksheet" used by the Silver Spring Township Police Department.2 These steps included checking with the address on his license and registration, or with his employer.3 He also argues that a check of the area prisons would have resulted in the Defendant's apprehension as early as September 5, 1997. At first blush it would appear that the Commonwealth could have done more in its attempts to apprehend the Defendant. In hindsight, it would appear that a single check of area prisons or area probation offices would have quickly led to his apprehension. However, a review of the applicable case law clearly shows that the police are not to be held to the 20/20 standard of hindsight. Our Superior Court, in the case of Com. v. Inqram, 404 Pa. 2See Defendant's Exhibit 5. 3The Defendant did not present any evidence that he actually lived or worked at those places. Furthermore, there is no evidence that a check of either place would have resulted in Defendant being located. NO. 98-1666 CRIMINAL TERM Super. 560 591 A.2d 734, (1991) set forth the standard to be applied in due diligence cases as follows: 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. Lack of due diligence should not be found simply because other options were available or, in hindsight, would have been more productive. (emphasis added) (citations omitted). 591 A.2d at 737. Applying that standard to the case before us, we are satisfied that the police exercised due diligence. Actually, the case before us is strikingly similar to the In_~ram case in which the appellate court affirmed the lower court's finding of due diligence. In Ingram the efforts by the police to apprehend the Defendant consisted of the following: . They attempted to serve the arrest warrant on Defendant at his last known address. After that attempt, they were left with the "reasonable belief" that he no longer lived there. · They notified local police departments of the warrant by entering it in the PCIC system. · They kept a lookout for the defendant while on routine patrol. In the instant case the efforts by the police to apprehend the Defendant consisted of the following: · They attempted to serve the warrant on Defendant at his last known address. They were advised that he left without leaving a forwarding address. · They notified local police departments of the warrant by entering it into the metro system. · They kept a lookout for the Defendant and his NO. 98-1666 CRIMINAL TERM "unique vehicle" while on routine patrol. Unquestionably, this case is very close. The police certainly could have done more. However, we are satisfied that what they did do met the bare minimum standards sufficient to defeat a due diligence challenge. In reaching this concl'usion we are mindful of Judge Spaeth's admonition in Com. v. Dorsey, 440 A.2d 619, 294 Pa. Super. 584, (1982) that The court should therefore take into account the limited resources available to the police, and should be wary of saying that the police should have done something that they did not do. 440 A.2d 619 at 622. Therefore, we will deny Defendant's Motion to Dismiss. AND NOW, this ORDER OF COURT day of MARCH, 1999, Defendant's Motion to Dismiss Pursuant to Pa. R. Crim. P. 1100 is DENIED. By the Court, /s/ Edward E. Guido Edward E. Guido, J. District Attorney William Braught, Esquire For the Defendant