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HomeMy WebLinkAbout00-1056 criminalCOMMONWEALTH VS. RICHARD C. KELLEY, SR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1056 CRIM1NAL IN RE: DEFENDANT'S PRETRIAL MOTIONS BEFORE HESS, J. ORDER AND NOW, this day of April, 2001, the pretrial motions of the defendant are DENIED. Jaime M. Keating, Esquire Chief Deputy District Attorney David S. Keller, Esquire For the Defendant :rlm BY THE COURT, Kevin~,~ ~ ~/ T. Hess, J. COMMONWEALTH VS. RICHARD C. KELLEY, SR. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-1056 CRIMINAL IN RE: DEFENDANT'S PRETRIAL MOTIONS B_EFORE HESS, J. ~OPINION AND ORDER The defendant, Richard C. Kelley, Sr., stands charged with various offenses alleged to have occurred in the course of his employment as the water manager for the Borough of Shippensburg between January 1, 1990, and May 1, 1993. The cases arise from an alleged improper cutting and selling of timber owned by the borough. Trooper Michael Gayman, the affiant herein, had filed a criminal complaint against Mr. Kelley in May of 1995 alleging that he committed theft and other offenses arising out of his employment between June 10, 1992, and March 6, 1995. Those charges were discovered in what the defendant refers to as a "spin-off of' the timber case." The 1995 charges had to do with the improper sale of' water taps. In the meantime, Trooper Gayman had filed a criminal complaint in Franklin County in March of 1995 charging Mr. Kelley with theft in connection with the aforementioned timber. Those charges were withdrawn at the direction of the Franklin County District Attorney on August 28, 1995. It is apparent that a key witness against the defendant is one Donald Johnson who is alleged to have been the person who paid money in connection with the sale of the timber. In 1995, Mr. Johnson could have, and apparently did, assert his rights under the Fifth Amendment. As the statute of limitations has now expired with regard to his involvement, he 00-1056 CRIM~AL can no longer claim a right against self-incrimination in connection with these criminal proceedings. In large measure because of the change in Mr. Johnson's circumstances, this case was presented to a grand jury, in Cumberland County, in April of 2000. l An information was filed in the case on June 6, 2000. The defendant has, among other things, moved to dismiss this prosecution pursuant to Pa.R. Crim. P. 315(a) which provides: (a) Upon motion and a showing that an information has not been filed within a reasonable time, the court may order dismissal of the prosecution, or in lieu thereof, make such other order as shall be appropriate in the interest of justice. It is clear that the court has broad discretion in the application of' this rule. Se__~e Comv. S__nyder, 385 Pa. Super. 58, 560 A.2d 165 (1989). One consideration is whether or not the delay in the prosecution has caused prejudice to the defendant. We do not believe that prejudice, apart from the delay, has been demonstrated in this matter. It is tree that Mr. Kelley has already been prosecuted for other charges arising from his conduct on the Shippensburg Borough Water Authority. At the time of those prosecutions, however, the testimony of Mr. Johnson was not available to the Commonwealth. In any event, as noted in Sn__n der, id.__~., Rule 315 speaks of the interest of justice and not prejudice. The dismissal of the instant prosecution is not in the interest of justice. The defendant has raised several other issues in his pretrial motion. We are satisfied that none of them warrant dismissal of the instant prosecution. We are satisfied, for example, that there is no violation of the compulsory joinder rule as set out in 18 Pa.C.S.A. 110. In short, a ~ N.T. 24-26, proceedings of March 1,2001. 00-1056 CRIMINAL prosecution for alleged bribes with respect to the sale of timber does not arise out of the same criminal episode as the defendant's 1995 convictions for accepting bribes for illegal water hook- ups. We have carefully considered the other issues raised by the defendant; namely, whether the instant prosecution is an abuse of process, whether the informations filed in the case are . legally sufficient, whether the defendant can be prosecuted for general as opposed to specific violations of law, whether statements made by the defendant are subject to suppression, and whether the statute of limitations has expired in this case. We are satisfied that none of these issues afford grounds for relief. AND NOW, this //~' DENIED. ORDER day of April, 2001, the pretrial motions of the defendant are Jaime M. Keating, Esquire Chief Deputy District Attorney David S. Keller, Esquire For the Defendant :rim BY THE COURT,