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HomeMy WebLinkAboutCP-21-CR-2480-2003 COMMONWEAL TH v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : CHARGE: UNLAWFUL DELIVERY OF A SCHEDULE II CONTROLLED SUBSTANCE : CP-21-CR-2480-2003 MILTON D. WASHINGTON, SR. OTN: H604750-6 IN RE: OPINION PURSUANT TO Pa. R. A. P. 1925 Hoffer. P.J., ,2005. In this criminal case, Defendant was found guilty following a jury trial presided over by the Honorable Edgar B. Bayley of Unlawful Delivery of a Schedule II Controlled Substance in the form of cocaine. He was sentenced by Judge Bayley to undergo imprisonment for a period of not less than two years nor more than five years. The trial had been preceded by a ruling by the writer of this opinion adverse to Defendant on an Omnibus Pre-trial Motion. From the judgment of sentence, Defendant has filed a direct appeal to the Pennsylvania Superior Court. In a statement of matters complained of on appeal, Defendant has included two issues relating to the disposition of the pre- trial motion: 1. The court erred in denying Defendant's Motion to Dismiss for a violation of his right to a speedy trial, Pa.R.Crim.P. 604 (sic). 2. The court erred in refusing to suppress photographic and subsequent in-court identifications made of Defendant.1 1 Defendant's Concise Statement of Matter Complained of on Appeal, filed December 21,2004. This opinion in support of the court's denial of Defendant's Omnibus Pre- trial Motion is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS As a result of an undercover purchase by police of cocaine on July 30, 2002 (Notes of Testimony 7, Hearing on Omnibus Pre-trial Motion, February 13, 2004 (hereinafter "N.T._.")), Defendant was charged on November 13, 2003 with unlawful delivery of a Schedule II controlled substance. (Criminal Complaint, November 13, 2003). On February 5, 2004, he filed an omnibus pre- trial motion for relief seeking: (a) dismissal of the charge based upon a violation of Pennsylvania Rule of Criminal Procedure 600 and (b) suppression of evidence based upon an allegedly unduly suggestive identification process. (Defendant's Omnibus Pre-trial Motion, filed February 5, 2004.) The evidence at the hearing on the motion, as credited by the court, may be summarized as follows: On Tuesday, July 30, 2002, Detective Troy McNair of the Cumberland County Drug Task Force was involved in an undercover drug operation for the Borough of Carlisle. (N.T. 8.) Detective McNair and another individual were circling Memorial Park in Carlisle in an unmarked vehicle when a man sitting on a chrome bicycle waved them down and approached their vehicle. (N.T. 10-11.) It was approximately 5:30 p.m., and the day was clear and sunny. (N.T. 11.) The man rode up to the passenger's side of the vehicle, where Detective McNair was sitting, and asked McNair what he wanted. (N.T. 11.) Detective McNair replied 2 "rock," and the prospective seller asked, "How much?" (Id.) McNair stated that he wanted $50.00 worth of "rock cocaine," and the man told them to meet him in the alley across the park before riding out of sight. (Id.) Detective McNair was approximately two feet away from the individual during this exchange and was able to observe his face "very well". (N.T. 11, 15.) After the individual rode away, Detective McNair radioed Detective Jeffrey Kurtz of the Carlisle Police Department, told him that a buy had been set up, and described the suspect. (N.T. 13.) He described the prospective seller as a black male, approximately twenty to twenty-five years old, with black hair and slight facial hair. (N.T. 12.) He described him as wearing khaki pants, a short sleeve dark plaid shirt, and a khaki baseball hat, and said that he was riding a BMX bicycle. (N.T. 12.) After Detective McNair's vehicle pulled into the alley, the same individual rode up to the driver's side, looked at them and said, "Which one of you is with the cops?" (N.T. 13.) After a brief argument, McNair handed over the money, and was given a white rock substance that appeared to be crack cocaine. (N.T. 14.) This second encounter lasted about two minutes. (N.T. 28.) At this point, the seller rode away on the bicycle. (N.T. 14.) Detective McNair again radioed Detective Kurtz to inform him that the purchase had been made, and again described the suspect to him. (N.T. 15.) Within three minutes of this transmission, Detective Kurtz observed a black male fitting the seller's description riding a chrome BMX bicycle on Lincoln Street. (N.T. 36.) He 3 stopped his vehicle less than ten feet away from the suspect, and spoke with a third party for a few minutes. (Id.) The next day, Detective Kurtz saw the same suspect on Pitt Street and asked Corporal Clepper of the Carlisle Borough Police Department to get his name. (N.T. 38.) Clepper spoke directly to the suspect, the Defendant, and obtained his name. (Id.) On August 9, 2002, Detective McNair was shown a photo of the Defendant, and positively identified him as the man who sold him the crack cocaine, but he immediately noted that the Defendant had longer hair in the photo than he had at the time of the sale. (N.T. 16, 39.) McNair also made a second identification of the Defendant in a photo lineup on September 4, 2002. (N.T. 17, 39-40.) Both Detective McNair and Detective Kurtz positively identified the Defendant as the suspect at the hearing on the pre-trial motion. (N.T. 15, 37). Detective Kurtz filed the criminal complaint and procured an arrest warrant on November 13, 2002. (N.T. 40.) Between that date and June 16, 2003, when the Defendant was finally apprehended, Detective Kurtz testified that he made numerous attempts to locate the Defendant. Kurtz personally visited the Lincoln Motel and the area around North Pitt and Lincoln Streets in Carlisle Borough, where the Defendant was known to frequent and where the drug transaction had occurred. (N.T. 41-42.) In addition, Kurtz unsuccessfully tried to locate the Defendant at the "Safe Harbor" residential shelter in Carlisle Borough, which was the address listed for the Defendant in his PENNDOT records (N.T. 44-45), and he spoke with the manager who informed him that the Defendant had left. (N.T. 4 41-42). Within a week of filing the complaint, Detective Kurtz entered the warrant into the Metro system, and made "constant" checks to see if the Defendant had been involved in subsequent criminal incidents. (Id.) Other Carlisle police also made several attempts to locate the Defendant on North Pitt and Lincoln Streets in Carlisle Borough, and Detective Kurtz personally proceeded through Memorial Park in Carlisle on numerous occasions trying to find him. (Id.) On June 16, 2003, the Defendant turned himself in to police after Detective Kurtz had discovered his name on a complaint filed by Harrisburg police on the Metro system and called him using the phone number listed on the complaint, which was to a halfway house in Harrisburg. (N.T. 42-43.) Defendant's trial commenced July 6, 2004. By way of summary of the critical dates pertinent to Defendant's pretrial motion for relief pursuant to Pennsylvania Rule of Criminal Procedure 600, the following may be noted: the criminal complaint against Defendant was filed on November 13, 2002; he was apprehended on June 16, 2003; his omnibus pretrial motion was filed on February 5, 2004; and the motion was disposed of by the court on May 10, 2004. Thus, 199 days elapsed between the filing of the complaint and the apprehension of Defendant, and 95 days elapsed between the filing of Defendant's pretrial motion and the court's disposition on the motion. 5 DISCUSSION Motion To Dismiss Pursuant to Pennsylvania Rule of Criminal Procedure 600 Under Pennsylvania Rule of Criminal Procedure 600(a)3, the general rule is set forth that a criminal trial must begin within 365 days of the filing of the complaint. However, any time between the filing of the complaint and the apprehension of the defendant during which the accused is at liberty may be excluded if the police acted with due diligence in trying to determine his whereabouts and apprehend him. Pa.R.Crim.P. 600(c)1. The Defendant contended that Rule 600 was violated because more than 365 days had passed between the filing of the criminal complaint on November 13, 2002 and before he was brought to trial on July 6,2004. (Omnibus Pre-trial Motion, ~~ 21-22.) He argued that none of the time between filing of the complaint on November 13, 2002 and his arrest on June 16, 2003 should be excluded because the police failed to act with due diligence in apprehending him. (Omnibus Pre-trial Motion, ~ 23.) However, because Detective Kurtz made several personal attempts to locate the Defendant between filing of the complaint on November 13, 2002 and the apprehension on June 16, 2003, which were based on his knowledge of the Defendant's history and because of the other police activity recited above, the Commonwealth's efforts, in the court's view, constitute due diligence. Therefore, the 199 days between November 13, 2002 and June 16, 2003 were excludable under Rule 600. In addition, the time period between the filing of the Defendant's 6 Pre-trial Motion on February 5, 2004 and the court's decision on the Motion on May 10, 2004, a total of 95 days, was also excluded under Rule 600. Therefore, a total of 291 non-excludable days passed between the filing of the complaint and the commencement of the trial on July 6, 2004, and there was no violation of the Defendant's right to a speedy trial. In determining whether police activities constitute due diligence, a court must employ a common sense approach that balances the activities of the police in light of their limited resources against the defendant's interests in a fair trial. Commonwealth v. InQram, 591 A.2d 734, 737 (Pa. Super. Ct. 1991). These police actions must be judged by what was done, not by what was not done or what could have been done. .!sL Furthermore, these actions need only be reasonable, and should not be judged retrospectively as to what would have been more productive. .!sL The court in InQram held that the police acted with due diligence in apprehending the defendant. .!sL The police officer in InQram attempted to serve the arrest warrant at the defendant's last known address, talked to the defendant's mother who reasonably believed that the defendant had left town, entered the warrant into the state system, and made location attempts at places where the defendant had often been seen in the past. .!sL On the contrary, the court in Commonwealth v. Collins, 404 A.2d 1320, 1323 (Pa. Super. Ct. 1979) held that police did not act with due diligence in apprehending the defendant. The police in Collins had made a single visit to the homes of two relatives and followed up a month and a half later by dropping a card at the 7 defendant's mother's house with a request that the defendant contact the police if he came home. Id. In the case at bar, Detective Kurtz made reasonable efforts to locate the Defendant by utilizing the resources available to him, and these efforts demonstrated that he acted with due diligence. Like the police in InQram, he made several attempts to locate the Defendant at the Lincoln Motel, the Safe Harbor Shelter, and the area around Memorial Park, which were all places where the Defendant was known to frequent in Carlisle Borough. (N.T. 41-42.) Detective Kurtz also spoke directly to the manager of the Safe Harbor Shelter, who informed him that the Defendant had left approximately six weeks earlier. (N.T. 42.) While the police in Collins failed to even contact the suspect's parole officer or the local authorities in the city where the defendant was allegedly living in a timely manner, Officer Kurtz took full advantage of the regional resources available to help locate fugitive suspects within a week of filing the complaint. (N.T. 42.) He entered the warrant on Metro and made frequent checks on this system to see if the Defendant appeared in any police reports. (Id.) The Carlisle Police were also involved in the search, and made several patrols through areas where the Defendant had been seen in the past, including N. Pitt Street, Lincoln Street, and the Lincoln Motel. (N.T. 41-42.) In addition, it is well settled that the period of time between the defendant's filing of the pretrial motion for relief and the court's disposition of the motion may be properly excluded from computation under the Rule when the delay is due to 8 the unavailability of the defendant. See Commonwealth v. Riffert, 549 A.2d 566, 570 (Pa. Super. Ct. 1988.); Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999.) Although the mere filing of a pre-trial motion does not automatically render a defendant unavailable, a defendant is unavailable for trial when the delay in the commencement of the trial is caused by his filing of a pre-trial motion, and the delay is excludable if the Commonwealth exercised due diligence in opposing the motion. Hill, 736 A.2d at 587. The court in Hill found that the period of time during which the trial court was deliberating on a series of pre-trial motions filed by the defendant was a delay due to the unavailability of the defendant. & at 588.2 The court reasoned that because at least one pre-trial motion filed by the defendant was pending throughout the time period contested by the Defendant and the trial court had conducted numerous hearings regarding the motion, the delay in the commencement of trial was due to the defendant's filing of pre-trial motions. Id. Furthermore, it found that the Commonwealth had exercised due diligence in opposing the motion because the prosecution had attended and was prepared for each of the pre-trial hearings conducted by the trial court. &3 Therefore, because the delay in the commencement of trial was due to the unavailability of the defendant, and the Commonwealth had exercised due 2 The court held that all but four days of this time period was excludable. Those four days were attributed to the lack of due diligence by the Commonwealth where the prosecution had requested a continuance of the pre-trial motion hearing, and therefore, were not excludable. Id. 3 See footnote 2 above. 9 diligence in opposing the motions, the period of time between the filing of the motions and the court's orders disposing the motions was excludable. & In the instant case, Defendant, in filing his pre-trial motion, initiated a delay in the commencement of trial for which the Commonwealth was not responsible in order to allow the court to deliberate on his motion. The court conducted a hearing concerning the pending pre-trial motion on February 13, 2004, and the Commonwealth exercised due diligence in opposing the motion because the prosecution attended and was prepared for the pre-trial hearing. In addition, after the court issued its order on Defendant's motion on May 10, 2004, the Commonwealth called the case to trial less than two months later on July 6, 2004. Therefore, the time period during which the court was deliberating on the Defendant's pre-trial motion is attributable to the unavailability of the Defendant, and thus, the 95 days between the filing of the motion and the date the court issued its order on the motion was excluded under Rule 600(c)3(a). Motion To Suppress Based on Unduly SUQQestive Identification Procedure. With respect to identification of suspects, the reliability of the identification as a whole is the "linchpin" in determining the admissibility of identification evidence. Manson v. Brathwaite, 432 U.S. 98, 114 (1977). The Defendant argues that photo identification evidence should be suppressed because the identification of him by Detective McNair from a single photograph was 10 suggestive, and therefore, resulted in a substantial risk of misidentification.4 (Omnibus Pre-trial Motion, ~ 13.) Although the Defendant is correct in asserting that the suggestive nature of the single photo identification must be considered in this instance, the reliability of the challenged identification must be determined by considering the totality of the circumstances as disclosed by the record. Manson, 432 U.S. at 113; See ~ Commonwealth v. FerQuson, 475 A.2d 813 (Pa. Super. Ct. 1984); Commonwealth v. Richardson, 500 A.2d 1200 (Pa. Super. Ct. 1985). In the instant case, because Detective McNair was a trained officer who had ample time to observe the seller's face during the exchange, accurately described the suspect during and immediately after the transaction, and made a photographic identification of the Defendant a mere ten days later, there was little risk of misidentification. In Manson, the Supreme Court held that, although the identification procedure was suggestive because a single photo was used, there was no substantial likelihood of misidentification. 432 U.S. at 114-115. The respondent- seller in Manson had challenged an identification made from a single photo presented to the police officer who was acting as the buyer in an undercover drug operation. 432 U.S. at 101. The Court reasoned that because the identification was made by a trained officer who had ample time to view the 4 The Defendant also asserted that the subsequent photo lineup and in-court identification should be suppressed as a result of the suggestive nature of the single photo identification. However, because the first identification was admissible, any subsequent identification was not tainted. (Omnibus Pre-trial Motion, ~~ 14, 18.) 11 suspect, accurately described him, and made the positive identification a short time after the crime, the ability of the officer to make an accurate identification outweighed the suggestive of the procedure. See id. at 115-116. The officer testified that he stood less than two feet away from the seller and that he was able to observe the seller's face twice as he opened the apartment door. & In addition, the hallway where the transaction took place was illuminated by natural light and light from inside the apartment. & The officer also accurately described the physical characteristics of the seller, including race, height, build, color and style of hair, and facial features, and this description matched the respondent's appearance. & at 115. The court also noted that the officer was experienced and specialized in this type of operation, and therefore, could be expected to pay scrupulous attention the detail in order to make a subsequent identification. Id. In the case at bar, even if it assumed for the sake of argument that the single photo procedure was unnecessary and suggestive, there is little risk that Detective McNair mistakenly identified the Defendant as the seller. First, Detective McNair was a member of the Cumberland County Drug Task Force and was specially trained in conducting undercover drug investigations. (N.T. 6.) He could be expected to pay careful attention to detail and to focus on a suspect's physical attributes in order to make a subsequent identification. Second, Detective McNair radioed Detective Kurtz twice during his encounter with the seller to describe his physical characteristics, and no argument was 12 made that the Defendant did not possess those same characteristics beyond Detective McNair's comment that the Defendant had longer hair in his photo. (N.T. 12, 15.) In addition, Detective McNair made the identification only ten days after his encounter with the seller. (N.T. 39.) Finally, and most importantly, Detective McNair had substantial opportunity to view the seller. The encounter occurred in broad daylight, and consisted of two conversations. (N.T. 11-15.) He was able to clearly observe the seller's face and body from less than two feet away for several minutes. (Id.) Under all the circumstances of this case, it cannot be said that the identification procedure resulted in a substantial likelihood of misidentification and, therefore, the weight of such identification evidence was for the jury to consider. CONCLUSION For the foregoing reasons, the court denied Defendant's omnibus pretrial motion for relief. BY THE COURT, George E. Hoffer, P.J. John C. Dailey, Esquire Assistant District Attorney Timothy L. Clawges, Esquire Assistant Public Defender 13