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Home My WebLink AboutCP-21-CR-0924-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CP-21-CR-0924-2006 : : CHARGE: (2) HARASSMENT : KELLY H. BINGAMAN : AFFIANT: PTL. THOMAS DOMBROSKI OTN: L276182-4 IN RE: POST-SENTENCE MOTION ORDER OF COURT th AND NOW , this 29 day of November, 2007, having considered the testimony presented, the briefs of the parties, and a careful examination of the complete record in this case, IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Post-Sentence DENIED. Motion is By the Court, M. L. Ebert, Jr., J. Christin Mehrtens-Carlin, Esquire Assistant District Attorney For the Commonwealth Douglas R. Goldhaber, Esquire 4311 North Sixth Street Harrisburg, PA 17050 For the Defendant COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CP-21-CR-0924-2006 : : CHARGE: (2) HARASSMENT : KELLY H. BINGAMAN : AFFIANT: PTL. THOMAS DOMBROSKI OTN: L276182-4 IN RE: POST-SENTENCE MOTION OPINION and ORDER OF COURT Ebert, J., November 29, 2007 - In this post-sentence motion, the Defendant argues that the Commonwealth failed to comply with Pennsylvania Rule of Criminal Procedure 600 by bringing the Defendant to trial after the expiration of the 365 day requirement. For the reasons set forth within, we find that the Commonwealth acted with due diligence in bringing the Defendant to trial and, therefore, Defendant’s motion is denied. PROCEDURAL BACKGROUND The Criminal Complaint was filed against the Defendant on January 27, 2006 charging her with Simple Assault and Harassment. Three days later, on January 30, 2006, Defendant’s counsel at that time, Herbert Goldstein, Esquire, requested a continuance of the preliminary 1 hearing until March 16, 2006. On or around February 21, 2006, Attorney Goldstein withdrew his representation of Defendant. She then was granted an additional continuance on 2 March 16, 2006, until March 27, 2006, to obtain an attorney. The Preliminary Hearing was finally held on March 27, 2006 before Magisterial District Judge Mark Martin and all of the 1 Transcript from Magisterial District Judge Mark Martin. 2 Id. 2 charges were bound over. The Defendant, represented by the Public Defender’s Office, was formally arraigned on May 16, 2006 and the case was set to begin trial on September 11, 2006 with the pretrial conference to take place on August 31, 2006. On August 31, 2006, Defendant failed to appear at the pretrial conference and the Court issued a bench warrant for Defendant’s arrest. She appeared for pretrial conference on September 1, 2006, and the bench warrant was vacated. On September 8, 2006, Defense counsel filed a Motion for Continuance which was granted on September 15, 2006. The case was then set for trial to begin on October 30, 2006 with a pretrial conference set for October 17, 2006. On November 1, 2006, Defense Counsel again filed a motion for continuance which was granted. The Defendant was ordered to appear for trial on Monday, January 29, 2007 with pretrial conference scheduled for Tuesday, January 16, 2007. On January 11, 2007, Defense Counsel filed yet another motion for a continuance of the case due to Defendant’s upcoming arthroscopy on January 17, 2007. On January 12, 2007 this motion for continuance was granted and the Defendant was ordered to appear for trial on April 9, 2007 with pretrial conference set for March 27, 2007. On April 10, 2007, Defense counsel asked the Commonwealth to continue the case to the second week of jury trials and upon agreement; the trial was set by the Court to begin on April 23, 2007. At the beginning of the trial on April 23, 2007, Count 1, a charge of Simple Assault, was dismissed and the case was set for a non-jury trial of the only remaining charge, Count 2, Harassment, a summary offense, for July 30, 2007. Prior to the commencement of trial on July 30, 2007, Defense Counsel filed a Motion to Dismiss the case for a violation of Pa.R.Crim. 600, claiming that the Commonwealth failed to bring the Defendant to trial within 365 days after filing of the Criminal Complaint. The Court met with counsel, performed an independent evaluation of the time which had elapsed and was 3 charged against the Commonwealth. The Court concluded that the Defendant was brought to trial within 365 days. This Court, therefore, conducted a non-jury trial and found the Defendant guilty of Summary Harassment. The Defendant filed a Post-trial Motion to Dismiss again citing Pa.R.Crim. 600 and this opinion addresses that Motion. DISCUSSION A. Excludable Time Article 1, Section 9 of the Pennsylvania Constitution gives the accused in a criminal prosecution the right to a speedy trial. This right has been codified in Rule 600 of the Pennsylvania Rules of Criminal Procedure. That rule requires that if the defendant is at liberty on bail, her trial shall commence no later than 365 days from the filing of complaint. When considering a speedy trial rule issue, a Court cannot ignore the dual purpose behind the rule. The speedy trial rule serves two equally important functions: (1) the protection of the accused’s speedy trial rights, and (2) the protection of society. The administrative mandate of the speedy trial rule was not designed to insulate the criminally accused from a good faith prosecution delayed through no fault of the Commonwealth. Since the initial adoption of the speedy trial rule, it has become black letter law that time attributable to requests for continuances by the defendant are excludable. Commonwealth v. Jones, 886 A.2d, 689 (Super. 2005), appeal denied 897 A.2d 452, 587 Pa. 686 (2006). An examination of the record shows that in total 550 days transpired from the filing of the complaint on January 27, 2006, until the defendant’s trial on July 30, 2007. Accordingly, a simple analysis of the time attributable to the Defendant’s continuances will provide the legal 4 answer to the Defendant’s post sentence motion for dismissal pursuant to Pa.R.Crim.P. 600. The following chart reflects the record of excludable time attributable to the Defendant: Reason for Exclusion Number of Days Excludable January 30, 2006 – March 16, 2006 45 days (Attorney Goldstein’s initial request for continuance of preliminary hearing) March 16, 2006 – March 27, 2006 11 days (Attorney Goldstein withdraws and Defendant requests continuance to obtain new counsel) August 31, 2006 – September 1, 2006 1 day (Bench Warrant - Defendant fails to appear for pretrial conference) September 15, 2006 – October 30, 2006 45 days st (1 Defense request for trial continuance: reason – new counsel) November 1, 2006 – January 12, 2007 72 days nd (2 Defense request for trial continuance: reason – Defense counsel had conflict in Federal Court) January 12, 2007 – April 9, 2007 87 days rd (3 Defense request for trial continuance: reason - Defendant’s knee surgery scheduled for January 17, 2007) April 10, 2007 – April 23, 2007 13 days (Defendant’s request for continuance of jury trial to the second week of the April 2007 term of Court due to counsel’s conflict) TOTAL NUMBER OF DAYS EXCLUDABLE 274 5 Accordingly, given the total elapsed time between the filing of the complaint and trial of 550 days, when one subtracts 274 excludable days attributable to the Defendant, the time attributable to the Commonwealth is 276 days. This time is well within the 365 day requirement of Pa.R.Crim.P. 600. In reviewing the Defendant’s brief, it becomes apparent that there was no recognition of the defense continuances made before the Magisterial District Judge. Clearly, the Defendant attributed the total time from January 27, 2006 until September 15, 2006 to the Commonwealth, claiming 232 days had elapsed. But the record establishes that Attorney Goldstein’s initial request for a continuance of the preliminary hearing accounted for 45 excludable days. Additionally, when Attorney Goldstein withdrew as counsel, 11 excludable days were required to appoint new counsel before the preliminary hearing. This time alone accounts for 56 excludable days. Even accepting the Defendant’s analysis of total time attributable to the Commonwealth of 374 days the exclusion of these 56 days would clearly reduce the time attributable to the Commonwealth to well below the 365 day limit. Additionally, an examination of the record does not support the contention in the Defendant’s brief that the total amount of time between March 27, 2007 and July 30, 2007 was attributable to the Commonwealth. Plainly there was excludable time which was attributed to the Defendant during this period which would additionally reduce the amount of time charged against the Commonwealth. Accordingly, the Defendant was tried in accordance with the requirements of Pa.R.Crim.P. 600 and the Defendant’s Post-Sentence motion is therefore denied. Accordingly the following order is entered: 6 ORDER OF COURT AND NOW , this 29th day of November, 2007, having considered the testimony presented, the briefs of the parties, and a careful examination of the complete record in this case, IT IS HEREBY ORDERED AND DIRECTED that the Defendant’s Post-Sentence DENIED. Motion is By the Court, M. L. Ebert, Jr., J. Christin Mehrtens-Carlin, Esquire Assistant District Attorney For the Commonwealth Douglas R. Goldhaber, Esquire 4311 North Sixth Street Harrisburg, PA 17050 For the Defendant 7