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HomeMy WebLinkAbout99-1137 criminalCOMMONWEALTH OF PENNSYLVANIA Mo JEFFREY R. STEWART · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·NO. 99-1137 CRIMINAL TERM B_EFORE GUIDO, J_. AND NOW, this ORDER OF COURT day of OCTOBER, 2000, Defendant's Motion to Dismiss Pursuant to Pa. Rule of Criminal Procedure 1100 is DENIED. By the Edward E. Guido, J. Mary Jo Mullen, Esquire For the Commonwealth Timothy L. Clawges, Esquire For the Defendant :sld COMMONWEALTH OF PENNSYLVANIA Vo JEFFREY R. STEWART · IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA ·99-1137 CRIMINAL TERM IN RE: DEFENDANT'S MOTION FOR DISMISSAL - _UNDER PA. R. CRIM. PROCEDURE 1100_ BEFORE GUIDO, L OPINION AND ORDER OF couRT This case is before us on defendant's Motion to Dismiss pursuant to Pa. R. Crim. P. 1100. For the reasons hereinafter set forth, defendant's Motion to Dismiss is DENIED. FINDINGS OF FACT 1) Detective Smith of the Carlisle Police Department interviewed the defendant in connection with an investigation of forgery charges sometime prior to February 20, 1997. He advised the defendant that charges would be forthcoming. 2) On February 20, 1997, complaints were filed in these matters, and a warrant issued for the defendant's arrest. 3) In the several weeks following the issuance of the wan'ant, Detective Smith made at least three attempts to locate the defendant at the address provided by the defendant, i.e., 17 South Pitt Street, ApmXment Number 3. Eventually, Detective Smith interviewed the apartment manager and determined that the defendant had moved. 4) Detective Smith attempted to contact the defendant through his friends several times over the course of the next few months. 99-1137 CRIMINAL 5) During that same period, Detective Smith contacted the defendant's mother who told him that she had no idea of the defendant's whereabouts. The mother affirmatively misled the detective in that regard. 6) During said time frame, the detective placed the warrant in both the NCIC and the Clean System registries. The NCIC is a nationwide depository for outstanding warrants, and the Clean System is a Pennsylvania depository for outstanding warrants. 7) After the summer of 1997, the detective's leads having dried up, he made no further efforts to find the defendant other than to look for him while on routine patrol throughout the streets of Carlisle. 8) During a routine patrol the detective spotted the Defendant on May 21, 1999, at which time he was arrested. 9) We find the Defendant's testimony that he advised officials as to his whereabouts to be incredible. 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, when 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 detemaining 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. 99-1137 CRIMINAL More than 365 days have passed since the time of the filing of the written complaint. The parties have agreed that the focus of our inquiry should be the time between the filing of the complaint on February 20, 1997 and defendant's arrest on May 21, 1999. If that time is excludable, under Pa. R. Crim. P. 1100 (C) (1), the defendants motion must fail.~ The Defendant argues that the time between the filing of the written complaint and his arrest is not excludable because the Commonwealth did not use due diligence in its attempts to apprehend him. It is his position that the police should have re-interviewed witnesses and gone to his last-known address periodically in an effort to locate the him. The Pennsylvania Superior Court, set forth the due diligence standard to be applied 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. Commonwealth v. Ingrain, 404 Pa. Super. 560, 567, 591 A.2d 734, 737 (1991). Applying that standard to the case before us, we are satisfied that the police exercised due diligence. In the several weeks following the issuance of the warrant, Detective Smith made at least three attempts to locate the defendant at the address he had been provided. He eventually interviewed the apartment manager and determined that defendant had moved. Over the next few months, he tried to contact the defendant through his friends and his mother.2 After ~ Defendant concedes that the delay which occurred after his arrest in May of 1999, is chargeable to him for Rule 1100 purposes. 2 It is interesting to note that the defendant's mother affim~atively misled the police. Since defendant testified that he was in regular contact with his mother, we conclude that he must have lmown that the police were looking for him. 99-1137 CRIMINAL Detective Smith had exhausted every possible lead, the warrant was entered on both the NCIC and the Clean System registries. Thereafter, he continued to look for the defendant during routine patrol. During such a routine patrol on May 21, 1999, he spotted the defendant and arrested him. As the Superior Court recognized' ... the police cannot investigate every crime with the promptness and thoroughness that would be desirable. Too many crimes are committed. The police must therefore make choices, devoting more attention to some crimes than to others, and foregoing some lines of inquiry that they would pursue if they had more resources. Commonwealth v. Laurie, 334 Pa. Super. 580, 583,483 A.2d 890, 892 (1984), citing Commonwealth v. Dorsey, 294 Pa. Super. 584, 589, 440 A.2d 619, 622 (1982). The question is not what the police could have done, but "whether what they did do was enough to constitute due diligence." Commonwealth v. Dorsey, 294 Pa. Super. 584, 588,440 A.2d 619, 621 (1982). Frankly, we feel that the police in the instant case have exceeded this standard. We are hard pressed to think of any additional steps the police could or should have taken. Because the police exercised due diligence, the time between the filing of the complaint and the defendant's arrest on May 21, 1999, is excluded under Rule 1100 (C) (1). Therefore, his Motion to Dismiss is denied. ORDER OF COURT AND NOW, this 18TH day of OCTOBER, 2000, Defendant's Motion to Dismiss Pursuant to Pa. Rule of Criminal Procedure 1100 is DENIED. Mary Jo Mullen, Esquire For the Commonwealth By the Court, Timothy L. Clawges, Esquire For the Defendant /s/Edward E. Guido Edward E. Guido, J.