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HomeMy WebLinkAboutCP-21-CR-1851-2006 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : DANNY LAWRENCE, JR. : CP-21-CR-1851-2006 IN RE: OPINION IN SUPPORT OF ORDER DATED OCTOBER 5, 2006, DENYING MOTION TO DISMISS PURSUANT TO PA.R.CRIM.P. 600 Bayley, J., January 3, 2008:-- Defendant, Danny Lawrence, Jr., was charged with three offenses occurring on January 18, 2004 12 : driving under the influence, failure to obey a traffic control signal, 3 September 13, 2006, and careless driving. On he filed a pre-trial motion to dismiss the charges pursuant to Pa.R.Crim.P. 600. A hearing was conducted before this judge October 5, 2006July 30, 2007 and an order entered on , denying the motion. On , a bench trial was commenced and defendant was found guilty by Oler, J., of all three October 9, 2007 offenses. On , on the count of driving under the influence, he was sentenced to pay a $300 fine and undergo imprisonment in the Cumberland County Prison for not less than eighteen days nor more than ten months with credit for eight days served. He was fined $25 for the traffic control offense and $25 for careless __________ 1 75 Pa.C.S. § 3731(a)(1). This Section has since been repealed and replaced at 75 Pa.C.S. Section 3802(a)(1). 2 75 Pa.C.S. § 3112(a)(3). 3 75 Pa.C.S. § 3714. CP-21-CR-1851-2006 October 25, 2007 driving. On , the driving under the influence sentence was corrected to reflect a credit of eighteen days previously served and a maximum sentence of six months. Defendant filed a direct appeal from the judgment of sentence to the Superior Court of Pennsylvania. In a concise statement of matters complained of on appeal he avers that, “The court erred in denying Defendant’s Motion to Dismiss Pursuant to Pennsylvania Rules of Criminal Procedure 600.” At the hearing on October 5, 2006, Corporal William Miller of the Carlisle January Borough Police Department testified that the offenses took place in Carlisle on 18, 2004 . He filed a complaint against defendant before a Magisterial District Judge on January 20, 2004 . The MDJ issued a summons and sent it to defendant at the address th February Corporal Miller had of 401 South 14 Street, Harrisburg, Pennsylvania. On 20, 2004February 23, 2004 , the certified mail was returned unclaimed. On , the MDJ March 12, 2004 sent a summons to the same address by regular mail. On , the mail April 12, was returned as “Not known.” A warrant for defendant’s arrest was issued on 2004 . May 10, 2004 On , the MDJ notified Corporal Miller that defendant was living at 253 McCargo Street, Apartment A, New Kensington, Westmoreland County. Corporal Miller notified the police department of New Kensington of the warrant of arrest that May 13, 2004 was issued for defendant. On , a social worker told the MDJ that she was in contact with defendant and was going to coordinate getting him to a preliminary -2- CP-21-CR-1851-2006 May 14, 2004 hearing. On , the MDJ sent defendant a certified notice at the New June 23, 2004 Kensington address of a preliminary hearing set for . The notice was June 21, 2004 returned as delivered and signed by defendant. On , defendant called the Magisterial District Judge saying that he was in Pittsburgh and could not attend the June 23, preliminary hearing. When he did not appear at the preliminary hearing on 2004 , another warrant was issued for his arrest. Shortly thereafter Corporal Miller entered the arrest warrant into NCIC. June 28, 2006 On , defendant was arrested, arraigned and committed to the Cumberland County Prison in lieu of posting $2,500 bail. He gave an address of 17 July 14, Glenwood Drive, Dillsburg, Pennsylvania. A preliminary hearing was set for 2006 . Defendant waived the charges to court and was released from prison on ROR July 18, bail. He had previously been held in the Cumberland County Prison from 2005 until July 22, 2005 on a warrant issued by this court, Hess, J., for outstanding fines and costs. In his motion filed on September 13, 2006 to dismiss pursuant to Pa.R.Crim.P. 600, defendant averred that: the complaint against him was filed on January 20, 2004; more than 365 days had elapsed and he had not been brought to trial; it is a violation of Rule 600 to fail to bring him to trial within 365 days from the date the complaint was filed; and there is no excludable time applicable for purposes of Rule 600. Pa.R.Crim.P. 600(A)(3) provides: a written complaint is filed against Trial in a court case in which -3- CP-21-CR-1851-2006 the defendant, when the defendant is at liberty on bail, shall commence not later than 365 days from the date on which the complaint is filed . Pa. Rule 600(C), 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 unknown and could not be determined by due diligence. . . . (3) such period of delay at any stage of the proceedings as results from: (a) the unavailability of the defendant or the defendant’s attorney . . . October 5, 2006 When the Rule 600 motion was heard on : January 20, 2004 1 – A complaint had been filed on . May 14, 2004, 2 – Defendant signed a certified mail receipt sent by an MDJ on June 23, 2004 notifying him of a preliminary hearing set for . June 23, 2004. 3 – Defendant failed to appear at the preliminary hearing on June 28, 2006 4 – Defendant was arrested on a warrant and imprisoned on . July 14, 2006 5 – He was released on ROR bail on . Commonwealth v. Mitchell, In 472 Pa. 553 (1977), the Superior Court of Pennsylvania stated: 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. -4- CP-21-CR-1851-2006 sub judice, In the case when Corporal Miller filed a complaint on January 20, 2004, and a summons was issued, the address he had for defendant was 401 South th 14 Street, Harrisburg, Pennsylvania. The certified mail sent by the MDJ was returned unclaimed and the subsequent regular mail notice was returned “Not known.” A warrant was issued on April 12, 2004. Within one month, on May 10, 2004, when Corporal Miller received information that defendant was living in New Kensington, Westmoreland County, he notified the police there of the outstanding warrant. However, three days later on May 14, 2004, the MDJ mailed a new certified notice to defendant in New Kensington, which defendant signed for, setting a preliminary hearing on June 23, 2004. Defendant signed for that notice but failed to appear at the hearing. A new arrest warrant was then issued. At that point, Corporal Miller had made reasonable efforts and used due diligence to have defendant apprehended; therefore, the period between January 20, 2004 and June 23, 2004 is excluded under Rule 600 (C)(1). When the second warrant was issued Corporal Miller entered it into NCIC. The NCIC posted warrant resulted in defendant being arrested in Dillsburg, York County, on June 28, 2006. Commonwealth v. Mitchell, In 472 Pa. 553 (1977), the Supreme Court of Pennsylvania noted that when a warrant of arrest is issued the fact that defendant was not located would not be treated as excluding any period of time required to ascertain his whereabouts absent a showing that the Commonwealth has exercised due diligence Commonwealth v. Cohen, in attempting to locate the defendant. However, in 481 Pa. -5- CP-21-CR-1851-2006 Mitchell 349 (1978), the Supreme Court stated that the situation described in “[d]iffers from one where the defendant has an obligation to be available and is aware of the Id. Cohen, appointed time and place where his presence is required.” at 355. In the defendant was on bail and failed to appear for a scheduled arraignment after which a bench warrant was issued for his arrest. The Supreme Court stated: Where the defendant is on bail and has notice of his obligation to appear and fails to do so, a concept of due diligence in apprehending the fugitive is misplaced in a speedy trial analysis. To rule otherwise would permit a defendant who intentionally absented himself from a scheduled court hearing to have the charges against him dismissed if the Commonwealth’s efforts to locate him did not measure up to a court’s standard of due diligence. Such a result is obviously absurd. We therefore hold that a defendant on bail who fails to appear at a court proceeding, of which he has been properly notified, is unavailable from the time of that proceeding until he is subsequently apprehended or until he voluntarily surrenders himself. In such a case the Commonwealth is entitled to an exclusion of this period under section (d)(1) without the requirement of a showing of its efforts to apprehend the defendant during 4 the period of his absence. Cohen Even though the defendant in was on bail and then failed to appear at his scheduled arraignment, there is no difference from the present case where the defendant signed a certified mail receipt of his summons and notice of the preliminary hearing date and then, knowing of the obligation to appear at the preliminary hearing at an appointed time and place, failed to do so. Defendant was a fugitive and all of the time between June 23, 2004 and his arrest on June 28, 2006, is excluded under Rule 600(C)(3)(a). __________ 4 Section (d)(1) was part of then Rule 1100. That section is now Rule 600(C)(3)(a). -6- CP-21-CR-1851-2006 In conclusion, the entire period between January 20, 2004 and June 28, 2006 is excluded from the 365 day computation under Rule 600. Therefore, the order -7- CP-21-CR-1851-2006 entered on October 5, 2006, denying the motion to dismiss the case was properly entered. (Date) Edgar B. Bayley, J. Jonathan R. Birbeck, Esquire Assistant District Attorney Michael Halkias, Esquire For Defendant :sal -8-