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HomeMy WebLinkAboutCP-21-SA-0000142-2009 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA : : CP-21-SA-0143-2009 : CHARGE: APPEAL FROM SUMMARY: : DRIVING WHILE OPERATING : PRIVILEGE IS SUSPENDED OR : REVOKED : AFFIANT: PTL. THOMAS DOLAN : CITATION NO. K937872-5 V. : : CP-21-SA-0142-2009 : CHARGE: APPEAL FROM SUMMARY: : DRIVING WHILE OPERATING : PRIVILEGE IS SUSPENDED OR : REVOKED (SUMMARY) : : AFFIANT: CPL. DAVID FONES PAUL M. WALTERS : CITATION NO. B6603281-6 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, Jr., J., November 23, 2009 – STATEMENT OF FACTS On April 24, 2008, Paul Walters (hereinafter “Defendant”) had his license suspended for 1 a term of one year. Between midnight and 1:00 a.m. on April 5, 2009, Defendant obtained his girlfriend’s car and drove himself and his girlfriend’s sister-in-law, Shasta Corman, from Carlisle 2 to Harrisburg. As a result of this activity, Officer Thomas Dolan of the Carlisle Police Department responded to Holly Corman’s house at 430 South Hanover Street regarding an accusation of unauthorized use of a motor vehicle. The alleged victim, Holly Corman, reported that she saw the Defendant take the keys for her vehicle and that he stated to her that he was going to use her car to obtain some beer. The victim then reported that the Defendant never 1 Notes of Transcript 15. 2 N.T. 5, 6. returned with the vehicle. As a result of this activity, Officer Dolan filed a criminal complaint which had an OTN number of K937872-5. This complaint was filed on April 6, 2009. At approximately 1:00 p.m. the next afternoon, David L. Corman saw the Defendant driving the vehicle in question at 349 North College Street. His wife, Shasta Corman, was in the vehicle with the Defendant. As a result of this activity, Cpl. David Fones of the Carlisle Police Department filed a separate traffic citation bearing citation number B6603281-6. Officer Dolan’s complaint and Cpl. Fones’ citation were filed with Magisterial District Judge Jessica Brewbaker. She heard the cases on June 17, 2009, and found the Defendant guilty of both offenses. The sentence on each separate offense was to pay the costs of prosecution, a fine of $500.00, and undergo incarceration in the Cumberland County Prison for a period of 60 days. The Defendant was represented by Assistant Public Defender Timothy Clawges, the same Public Defender who represented the Defendant at the summary de novo trial in the Court of Common Pleas. The Defendant filed timely notices of appeal on both charges on July 14, 2009. The matters were then set down for summary de novo trials on September 8, 2009. Trials were held on each charge. At trial, Defendant requested continuances in both matters in order “to 34 locate, interview, and secure witnesses.” The requests were denied. Defendant was found guilty of both offenses of Driving while Operating Privilege is Suspended. However, given that the location and date of both offenses were the same, the Court merged the sentences. As a result Defendant’s total sentence for both charges was the cost of prosecution, a single fine of $500.00, a CAT fund surcharge of $30.00, EMS fund fine of $10.00, and 60 days incarceration in the Cumberland County Prison with the ability to participate in work release. In short, this was half the sentence imposed by the Magisterial District Judge. 3 N.T. 3, 27. 4 N.T. 3, 27. 2 DISCUSSION I.The Court Did Not Abuse its Discretion in not Granting a Continuance as Requested by Defendant Pennsylvania Rule of Criminal Procedure Rule 106 governs continuances. This Rule 5 requires Defendants to make motions for continuances not later than 48 hours before trial. Any 6 requests made within 48 hours of trial are at the discretion of the Court. Defendant’s reasons for tardiness in filing the motion included that Defendant’s counsel had just been informed by his client the “morning [of trial] of the possibility of some witnesses in the matter” and that Defendant may have “either been in or phoned [counsel’s] office sometime [the] week [prior to 7 trial].” When requests for continuance are made in order to secure witnesses, the Court, in exercising discretion, should consider “the diligence exercised to secure the presence of the witness at trial . . . ; the likelihood that the witness could be produced at the next term of court . . 8 . ; and the timeliness of the application for a continuance.” A.Diligence Exercised to Secure the Presence of the Witness at Trial Regarding the first factor – diligence in securing the witness, it is unknown why there were no attempts to secure the defense witnesses prior to the morning of trial. The Magisterial District Justice sentenced Defendant on July 14, 2009. He had from that date until September 8, 2009, a period of nearly two months, to secure the witnesses for his appeal. Not only did 5 Pa. R. Crim. P. 106(c). 6 See Commonwealth v. Fisher, 372 A.2d 1, 5 (Pa. Super. Ct. 1977) (citing former Pa. R. Crim. P. 301(b), current Pa. R. Crim. P. 106(c)), (holding that discretion was not abused by denying a continuance formally filed on the day after the trial began). 7 N.T. 3. 8 Commonwealth v. Foreman, 375 A.2d 142, 144 (Pa. Super. Ct. 1977) (citing Commonwealth v. Smith, 275 A.2d 98 (Pa. Super. Ct. 1971); Commonwealth v. Hicks, 98 A.2d 478 (Pa. Super. Ct. 1953); Commonwealth v. David, 225 A.2d 255 (Pa. Super. Ct. 1969)). 3 Defendant not secure the witnesses, he had not even informed his counsel about the possibility of witnesses until the morning of trial. Defendant has shown absolutely no diligence in identifying, locating, interviewing, or securing witnesses for his defense. B.Likelihood that the Witness Could Be Produced At the Next Term of Court In order to evaluate the second factor – likelihood of producing the witness, this Court would need some knowledge of who the claimed defense witnesses are. The Defendant placed no offer on the record as to the identification of any witnesses he wished to call. Without any assurance by the Defendant that there were real witnesses to secure for a future hearing, the 9 Court need not grant the requested continuance. C.Timeliness of the Application for a Continuance As the request for the continuance was made at the very time the case was being called for trial, and not more than 48 hours prior to the start of trial, Defendant did not make a timely request to the Court. CONCLUSION This Court, pursuant to Pa. R. Crim. P. 106(c), did not abuse its discretion in denying Defendant’s request for continuance and the sentence awarded is just. By the Court, M. L. Ebert, Jr., J. Michelle H. Sibert, Esquire Chief Deputy District Attorney 9 See Commonwealth v. Hicks, 98 A.2d 478 (Pa. Super. Ct. 1953); Commonwealth v. Foreman, 375 A.2d 142, 144 (Pa. Super. Ct. 1977). 4 Timothy L. Clawges, Esquire Deputy Public Defender 5