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HomeMy WebLinkAbout03-97 CriminalCOMMONWEALTH BRIAN HARRY SAWDY IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-0097 CRIMINAL TERM MOTION OF DEFENDANT TO DISMISS UNDER PA.R. CRIM.P. 600 BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., August 8, 2003:-- Defendant, Brian Harry Sawdy, is charged with driving under the influence in violation of the Vehicle Code at 75 Pa.C.S. § 3731(a). He filed a motion to dismiss pursuant to Pa.R. CrimP. 600. A hearing was conducted on June 24, 2003. The evidence was as follows. Defendant was operating a motor vehicle in Cumberland County on July 12, 2000. He was stopped by Trooper Ronald Coyler of the Pennsylvania State Police. Defendant displayed a Pennsylvania driver's license with an address of 2251 Pine Road, P.O. Box 84, Newville, Cumberland County. He told the trooper that he had moved from 2251 Pine Road, Newville to 12924 Swordfish Drive, Ocean City, Maryland. He said that he received his mail at that address and that he was a fisherman and was at sea for long periods of times. Almost five months later on December 7, 2000, Trooper Coyler filed a criminal complaint charging defendant with driving under the influence on July 12, 2000. He listed defendant's address as 12924 03-0097 CRIMINAL TERM Swordfish Drive, Ocean City, Maryland. A District Justice scheduled a preliminary hearing for January 11, 2001, issued a summons, and sent the summons and the notice of the hearing to defendant at his address in Ocean City, Maryland. Defendant did not appear at the preliminary hearing. A warrant was issued for his arrest on April 16, 2001. Trooper Ronald Coyler was transferred to Harrisburg in the beginning of January, 2001. His brother, Trooper Dane Coyler, was assigned to do due diligence on this case on January 8, 2001. On August 28, 2001, he checked with PennDOT to determine if defendant was still in the state of Maryland. PennDOT noticed Trooper Coyler that their records indicated that defendant was living at 52 Comet Court in Baltimore, Maryland. On August 30, 2001, Trooper Coyler obtained the approval of the District Attorney of Cumberland County, to extradite defendant if he was found in the state of Maryland. On September 5, 2001, Trooper Coyler entered the warrant into NCIC. On January 3, 2003, Trooper James Borso was assigned to determine if the warrant against defendant could be served. He went to 2251 Pine Road, Newville, and was told by the people who lived there that defendant worked for them and that he lived down the road at 2194 Pine Road, Newville. Trooper Borso went to that residence where he found defendant and arrested him on the warrant for driving under the influence. Defendant lived at 2251 Pine Road, Newville until he moved to 12924 Swordfish -2- 03-0097 CRIMINAL TERM Drive, Ocean City, Maryland in April, 1997. On April 10, 2001, he returned to Newville and moved into 2194 Pine Road where he still lives. On December 27, 2001, he renewed his Pennsylvania driver's license. Defendant testified and stated that he never received notice of the Pennsylvania charges. He assumed that no charges had been filed and knew nothing about them until he was arrested by Trooper Borso on Janua~ 3,2003. DISCUSSION Pa.R. Crim. P. 600(A)(3) provides:1 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 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 proceeding as results from: (a) the unavailability of the defendant or the defendant's attorney... (Emphasis added.) In Commonwealth v. Wentzel, 434 Pa. Super. 76 (1994), the Superior Court of Pennsylvania stated: 1 Formerly Pa. Rule of Criminal Procedure 1100. -3- 03-0097 CRIMINAL TERM 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). noted: Under Rule 1100, the Commonwealth may exclude not just the time that the defendant or his attorney is unavailable for trial, but the entire period of delay that results from such unavailability. Commonwealth v. Gorham, 341 Pa. Super. 499, 491 A.2d 1368 (1985). The Superior Court has further held that "the actual delay caused by the defendant's unavailability includes the period of time from the date of his unavailability until 'the earliest practicable trial date .... '" Commonwealth v. Armstead, 359 Pa. Super. 88, 92, 518 A.2d 579, 582 (1986) (quoting Commonwealth v. Fisher, 334 Pa. Super. 449, 458, 483 A.2d 537, 541-42 (1984)). "Any delay caused by the unavailability of a defendant is excluded from computation of the Rule 1100 period." Armstead, 359 Pa. Super. at 91, 518 A.2d at 581. "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). In Commonwealth v. Webb, 278 Pa. Super. 599 (1980), the Superior Court 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 was done by the authorities rather than what was not done. The standard of due diligence demands only reasonable efforts. -4- 03-0097 CRIMINAL TERM The timeline in this case sub judice is as follows: lives July 12, 2000 December 7, 2000 -- January 11, 2001 -- April 10, 2001 -- April 16, 2001 -- August 28, 2001 -- August 30, 2001 -- September 5, 2001 -- January 3, 2003 -- Offense date at which time defendant tells officer his address in Ocean City, Maryland Complaint filed and summons issued Defendant does not appear at a preliminary hearing Defendant returns to Newville, Pennsylvania and a few doors from the address he had told the officer was his previous residence Arrest warrant issued Officer makes PennDOT check which shows defendant living in Baltimore, Maryland District Attorney approves extradition from Maryland Warrant entered into NCIC Officer checks old Newville address and discovers defendant living a few doors away This is not a case where a defendant fled and hid in another state to avoid apprehension. See Commonwealth v. Fisher, 681 A.2d 130 (Pa. 1996). We do not believe that the exclusion provision in Rule 600(c)(3) is brought into play by a mere showing that defendant resides in a foreign state when he would be amenable to rendition under the Uniform Criminal Extradition Act. In accord, Commonwealth v. McReynolds, 74 D. & C.2d 279 (Lawrence County 1976).: The Commonwealth has : Pennsylvania and Maryland are signatories to the Act. Code, Criminal Procedure, §§ 9-101 to 9-128. -5- 42 Pa.C.S. § 9121 et seq.; 03-0097 CRIMINAL TERM the burden of proving due diligence. Commonwealth v. Lynn, 815 A.2d 1053 (Pa. Super. 2003). We are constrained to conclude that due diligence was not exercised because reasonable efforts to locate defendant were not undertaken. Defendant was living in Newville, Cumberland County, from four days before the arrest warrant was issued on April 16, 2001 until he was arrested at that residence on January 3, 2003. The addresses where he lived in Maryland from before the date of the offense on July 12, 2000, until he returned to Pennsylvania were known to the Commonwealth. An arrest warrant was not even entered into NCIC until September 5, 2001, a year and almost nine months after the criminal complaint was filed. Nothing further was done until defendant was arrested at his home on January 3, 2003. Accordingly, the following order is entered. ORDER OF COURT day of August, 2003, the charge of driving under the AND NOW, this influence against defendant, IS DISMISSED. By the Court, Geoffrey Mclnroy, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant Edgar B. Bayley, J. :sal -6- COMMONWEALTH BRIAN HARRY SAWDY IN RE: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 03-0097 CRIMINAL TERM MOTION OF DEFENDANT TO DISMISS UNDER PA.R. CRIM.P. 600 AND NOW, this influence against defendant, IS DISMISSED. BEFORE BAYLEY, J. ORDER OF COURT day of August, 2003, the charge of driving under the By the Court, Geoffrey Mclnroy, Esquire For the Commonwealth H. Anthony Adams, Esquire For Defendant Edgar B. Bayley, J. :sal