HomeMy WebLinkAboutCP-21-CR-0094-2003COMMONWEALTH
V.
RICKEY L. McKEE
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
NO. 2003-0094 CRIMINAL
IN RE: DEFENDANT'S OMNIBUS PRETRIAL MOTION TO QUASH
BEFORE GUIDO, J.
OPINION AND ORDER OF COURT
On November 29, 2002, a criminal complaint was filed charging the defendant
with altering or obliterating marks of identification,~ simple assault,2 and harassment.3
The charges of simple assault and harassment were dismissed at the preliminary hearing.
The remaining charge was bound over to court.
On February 5, 2003, the District Attorney filed an information charging the
defendant with the violating Section 6117 of the Crimes Code in that he did
"intentionally, knowingly or recklessly change, alter, remove, or obliterate the name of a
maker, model, manufacturer's number, or any other mark of identification on any
firearm.''4 On March 13, 2003, the District Attorney filed an amended information which
added a second count. Specifically, Count 2 added the misdemeanor charge of
"Possession of firearm with altered manufacturer's number" under Section 6110.2 of the
Crimes Code.5 On March 24, 2003, defendant filed a Motion to Quash/Dismiss Count 2
of the amended information. For the reasons hereafter set forth, the motion will be
18 Pa. C.S.A. § 6117.
18 Pa. C.S.A. § 2701(a)(1).
18 Pa. C.S.A. § 2709(a)(1).
See Information. The charge was graded a felony of the second degree.
18 Pa. C.S.A. § 6110.2
NO. 2003-0094 CRIMINAL
denied.
Pa. Rule of Criminal Procedure 560(B)(5) "does not require that the crime
charged in the information be identical to that charged in the complaint so long as the
charge is cognate to the one laid in the complaint." Commonwealth v. Donaldson, 339
Pa. Super. 237, 239-240, 488 A.2d 639, 640-641 (1985).6 Thus, the central issue to be
resolved in this case is whether Count 2 is cognate to the offense charged in the
complaint.
In Commonwealth v. Slingerland, 358 Pa. Super. 531,518 A.2d 266 (1986) the
Superior Court stated:
The word "cognate" is defined in Webster's Third New International
Dictionary (1965) as "related, akin or similar esp. in having the same or
common or similar nature, elements, qualities or origin .... "Applying
this common usage of the word, it would seem that the two subsections of
75 Pa.C.S. § 373 l(a) define cognate offenses. Even though the elements
of the offenses defined in subsections (a)(1) and (a)(4) are not identical,
the offenses are similar in nature and spring from a common concern. The
substantive nature of the offenses is clearly the same, namely the operation
of a vehicle after alcohol has been consumed to a degree which renders the
operator a hazard to others and to himself or herself.
358 Pa. Super. at 535, 518 A.2d at 268. In discussing whether a charge may be added to
the information as a cognate offense under Rule 560(B)(5),7 the Slingerland Court held
that "(i)fthe complaint puts the defendant on notice of the substance of the crime for
which he is being charged, it is sufficient." Id. quoting Commonwealth v. Wilkinson, 278
Pa. Super. 490 498 n.6, 420 A.2d 647, 651 n.6 (1980).
The Donaldson Court was dealing with former Rule 225(b)(5) which is identical to current Rule
560(B)(5).
Again, we note that the Slingerland Court was dealing with former Rule 225(b)(5).
NO. 2003-0094 CRIMINAL
Applying the above rationale to the case at bar, we are satisfied that the charge in
Count 2 is cognate to the charge brought in the complaint. Count 1 of the criminal
complaint charges the following:
TITLE 18 PENNSYLVANIA CRIMES CODE SECTION 6117
ALTERING OR OBLITERATING MARKS OR IDENTIFICATION: Def was in
possession of a colt 380 handgun with an altered, changed or obliterated mark;
specifically two (2) numbers of the serial number were made unreadable. FELONY OF
THE SECOND DEGREE.
(Emphasis in original). Count 2 of the information charges that the defendant did:
possess a firearm which has had the manufacturer's number
integral to the frame or receiver altered, changed, removed or
obliterated.8
We conclude that the charge in Count 2 of the information is cognate to the crime
charged in the complaint, i.e. "the offenses are similar in nature and spring from a
common concern." Slingerland, supra. Furthermore, the complaint clearly placed the
defendant "on notice of the substance of the crime for which he is being charged."
14/ilkinson, supra.9 Therefore, the defendant's Motion to Quash will be denied.
8 See Amended Information.
9 Our Courts have long recognized the need for flexibility in adding cognate offenses to the formal
information:
As stated in Commonwealth v. Cortes, 182 Pa. Super. 602, 605, 128 A.2d 155, 156
(1956), "The police and other law enforcement officers and justices of the peace who
formulate the complaints are not expected to be learned in the law."
Commonwealth v. Slingerland, supra, 518 A.2d at 266 quoting from Commonwealth v. Wilkinson, 420 A.2d
at 651 n.6.
NO. 2003-0094 CRIMINAL
ORDER OF COURT
AND NOW, this 22ND day of APRIL, 2003, for the reasons set forth in the
accompanying opinion, Defendant's Motion to Quash is DENIED.
By the Court,
District Attorney
Mark F. Bayley, Esquire
For the Defendant
/s/Edward E. Guido
Edward E. Guido, J.
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