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HomeMy WebLinkAboutCP-21-CR-1354-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : BRADLEY ENOCH : CP-21-CR-1354-2008 IN RE: MOTION OF DEFENDANT TO DISMISS PA.R.CRIM.P. 600 OPINION AND ORDER OF COURT Bayley, J., August 18, 2008:-- Defendant, Bradley Enoch, is charged with two counts of unlawful delivery of a 1 July 21, 2008 controlled substance. On , defendant filed a motion to dismiss the charges against him pursuant to Pa.R.Crim.P. 600. A hearing was conducted on August 12, 2008 . September 13 The offenses against defendant are alleged to have occurred on and 19, 2006 . A confidential informant was involved in the investigation, and because the police wanted to continue to use the informant, a criminal complaint was not filed May 2, 2007 until . The address that the police had for defendant in September, 2006, was 2700 Derry Street, Harrisburg, Dauphin County. When the complaint was filed in May, 2007, the police checked with PennDOT which showed that defendant had an operator’s license with an apartment address at 101 South Second Street, Harrisburg, Dauphin County. May 6, 2007 On , two officers went to 2700 Derry Street. They were unable to __________ 1 35 P.S. § 780-113(a)(30). CP-21-CR-1354-2008 May 7, 2007 locate defendant or talk to anyone as to whether he was living there. On , the officers went to 101 South Second Street, which is an office building with apartments on the upper floors. The front door was locked. Without obtaining any information as to whether defendant lived in one of the apartments, the officers left after canvassing the immediate area in an unsuccessful attempt to locate defendant’s vehicle. One of the officers testified that she may have gone back to 101 South Second Street a second time in 2007, but she could not be sure. No officer ever entered into the building. The warrant for defendant was entered into all the available May 1, 2008 electronic systems. On , defendant was apprehended in Harrisburg for another offense. The authorities held him on the outstanding warrant from Cumberland May 2, 2008 County. He was arraigned on that warrant on . Defendant was living in Apartment 507, 101 South Second Street, Harrisburg, on May 2, 2007, when the criminal complaint was filed against him, and he was still living there when he was arrested on May 1, 2008. The first three floors of the building are offices and the upper floors are apartments. A building manager has an office immediately inside the front door. The front door is unlocked Monday through Fridays from 9:00 a.m. to 5:00 p.m. Entry into the front door on other occasions is through a code activated system that is available to the tenants. Pa.R.Crim.P. 600(A)(3) provides: Trial in a court case in which a written complaint is filed against the -2- CP-21-CR-1354-2008 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. 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 provided that the defendant could and the defendant’s arrest, not be apprehended because his or her whereabouts were unknown and could not be determined by due diligence . (Emphasis added.) Commonwealth v. Wentzel, In 434 Pa. Super. 76 (1994), the Superior Court of Pennsylvania stated: The test to be met is whether the Commonwealth’s efforts to bring the defendant to trial were reasonable and pursued with due diligence. Commonwealth v. Koonce, 511 Pa. 452, 460, 515 A.2d 543, 547 (1986). * * * “Although the standard of due diligence does not require the Commonwealth to exercise every conceivable effort, it does require the Commonwealth to make reasonable efforts.” Commonwealth v. Johnson, 405 Pa.Super. 363, 370, 592 A.2d 706, 709 (1991) (quoting Commonwealth v. McCutcheon, 339 Pa.Super. 8, 14, 488 A.2d 281, 284 (1985)). The test in determining whether the Commonwealth acted with due diligence is one of reasonableness under the circumstances. Commonwealth v. Burke, 344 Pa.Super. 288, 496 A.2d 799 (1985). Commonwealth v. Webb, In 278 Pa. Super. 599 (1980), the Superior Court stated: It seems clear that the test is not a venture into hindsight reasoning as to whether if certain individuals have been contacted, or other things done, an arrest would probably have been made. The matter of availability and due diligence must be judged by what wasdone by the authorities rather than what was not done. The standard of due diligence -3- CP-21-CR-1354-2008 demands only reasonable efforts. sub judice In the case ,the police, when they filed the delayed criminal complaint against defendant on May 2, 2007, obtained his current address of 101 South Second Street, Harrisburg, Dauphin County, from the Department of Transportation. Defendant was living there on that date and continued to live there until he was arrested on another matter on May 1, 2008. The police never entered the apartment building at 101 South Second Street to locate and arrest defendant. They knew his whereabouts for one year yet failed to make a reasonable effort to apprehend him. There was no due diligence. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of August, 2008, the motion of defendant to IS GRANTED. dismiss the criminal charges against him, The criminal charges against ARE DISMISSED. defendant, By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire For the Commonwealth Alan Ross, Esquire For Defendant :sal -4- COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : BRADLEY ENOCH : CP-21-CR-1354-2008 IN RE: MOTION OF DEFENDANT TO DISMISS PA.R.CRIM.P. 600 ORDER OF COURT AND NOW, this day of August, 2008, the motion of defendant to IS GRANTED. dismiss the criminal charges against him, The criminal charges against ARE DISMISSED. defendant, By the Court, Edgar B. Bayley, J. Daniel Sodus, Esquire For the Commonwealth Alan Ross, Esquire For Defendant :sal