Loading...
HomeMy WebLinkAbout99-0943 criminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Vo STEVEN KEITH KUHN 99-0943 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 OPINION Bayley, J., October 18, 1999:- On July 22, 1999, a jury found defendant, Steven Keith Kuhn, guilty of operating a motor vehicle while under the influence of alcohol to a degree that rendered him incapable of safe driving.~ On August 31, 1999, defendant was sentenced to pay the costs of prosecution, a $300 fine, and undergo imprisonment in the Cumberland County Prison for a term of not less than ninety days or more than twenty-three months? Defendant filed a direct appeal to the Superior Court of Pennsylvania from the judgment of sentence. In a concise statement of matters complained of on appeal, as amended, defendant raises one issue of whether it was error to deny his pretrial motion to dismiss the information pursuant to Pa.R.Crim. P. 1100.3 ~ 75 Pa.C.S. Section 3731(a)(1). 2 This was defendant's sixth offense for driving under the influence. offenses were in 1985, 1986, 1988, 1996 and 1998. 3 An order denying the motion was entered on July 13, 1999. His prior 99-0943 CRIMINAL TERM The evidence in a light most favorable to the Commonwealth was as follows." Around midnight on July 2, 1998, defendant drove his car from a public street in the Borough of Carlisle to a take-out stall at a Taco Bell restaurant. The general manager of the restaurant took the money from defendant for his order and noticed that defendant had very slurred speech, was not comprehending him, and was obviously intoxicated. The manager called the police who responded before any food was delivered to defendant. Officer Matthew Kennedy of the Carlisle Police arrived and asked defendant for his license, registration and insurance card. Defendant looked confused and the officer repeated the request. The officer smelled an alcoholic beverage on defendant and he told him that there had been a report that he was driving under the influence. Defendant gave the officer his license, opened the glove compartment and told him that he was unable to find his other papers. The officer asked defendant if he had been drinking. Defendant answered "A few." Defendant's speech was slurred. The officer had defendant go to the sidewalk of the street next to the restaurant. He saw that defendant's eyes were bloodshot and glassy. He had defendant perform a walk-and-turn test and the one-leg stand test both of which defendant failed. Officer Kennedy was of the opinion that defendant was under the influence of alcohol to a degree that rendered him incapable of safe driving and arrested him for driving under the influence. Defendant was taken to the Carlisle Commonwealth v. Reddix, 355 Pa. Super. 514 (1986). -2- 99-0943 CRIMINAL TERM Hospital where a blood test was sought after defendant was advised of his rights under the Implied Consent Law. Defendant consented and a technician attempted to remove blood from one arm but could not get any. Defendant was then asked to provide blood from the other arm. He refused saying that he would not be stuck again? A pretrial hearing was conducted on July 9, 1999, on defendant's motion to dismiss the information pursuant to Pa.R.Crim. P. 1100. We make the following findings. A complaint was filed against defendant on July 2, 1998, charging him with driving under the influence. Bail was set at ROR. Defendant was sent a summons notifying him of a preliminary hearing on August 27th. Defendant appeared on August 27th and requested a public defender. He had not contacted the District Justice prior to that date to request free representation. The District Justice appointed the public defender to represent defendant; however, there was no public defender in the office at that time. The preliminary hearing was continued until October 21st. On October 21st, Officer Kennedy requested a continuance because his wife was in labor. The preliminary hearing was continued to December 16th. On December 16th, the District Justice was unable to hold the hearing because she was conducting hearings that entire day for defendants who were in prison. As a result the District Justice continued the hearing until March 17, 1999. On March 17~, defendant was present with his public defender, Ellen Barry, and Defendant did not testify or present any evidence at trial. -3- 99-0943 CRIMINAL TERM the prosecution was ready to proceed with the preliminary hearing. Defendant, however, requested a continuance because he no longer wanted Ellen Barry to represent him and he sought time to hire a private attorney. The District Justice granted the continuance and the preliminary hearing was rescheduled for April 21% Officer Kennedy later asked for that date to be changed because he was to undertake military training that day. The hearing was rescheduled back to April ?th. However, the District Justice later rescheduled the hearing for April 28th because of a full docket on April 7th. Officer Kennedy was on military training on that date so the District Justice rescheduled the hearing for May 5t~, on which date the preliminary hearing was conducted. The trial of defendant commenced on July 21, 1999. Pa.R.Crim. P. 1100(g) provides: For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant's attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated. A copy of such motion shall be served upon the attorney for the Commonwealth, who shall also have the right to be heard thereon. If the court, upon hearing, shall determine that the Commonwealth exercised due diligence and that the circumstances occasioning the postponement were beyond the control of the Commonwealth, the motion to dismiss shall be denied and the case shall be listed for trial on a date certain. Rule 1100(c) provides: In determining the period for commencement of trial, there shall be excluded therefrom:... (3) such period of delay at any stage of the proceedings as results from:... (ii) any continuance granted at the request of the -4- 99-0943 CRIMINAL TERM defendant or the defendant's attorney. (Emphasis added .) The 365th day from July 2, 1998, when the criminal complaint was filed, was July 1, 1999. The trial of defendant commenced twenty days later on July 21, 1999. When the Commonwealth and the District Justice were ready to start the preliminary hearing on March 17, 1999, defendant made a motion for a continuance to obtain private counsel rather than proceed with his appointed Public Defender, Ellen Barry. The motion was granted and the preliminary hearing was reset for April 21, 1999. Under Rule 1100(c)(3)(ii), defendant is charged for this continuance not caused by the Commonwealth of 34 days between March 17~ and April 21st.6 See Commonwealth v. Stilley, 455 Pa. Super. 543 (1997). Excluding the 34 days from the running of the 365 days means that defendant's trial started within the time required by Rule 1100.7 I Pa.C.S. Section 1908, "Computation of Time," provides that: When any period of time is referred to in any statute, such period in all cases.., shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation. 7 The result is the same even if the time excludable on defendant's motion for a continuance on March 17th ran only for the next 20 days until April 7th which was the date the District Justice later rescheduled the preliminary hearing that was originally continued until April 21st. The trial commenced on July 21, 1999, which was 20 days beyond 365 days. We further conclude that when defendant appeared without counsel for his preliminary hearing initially set for August 27, 1998, and requested the appointment of a public defender, the continuance that was granted until October 21, 1998, (55 days) to allow for a public defender to represent him is also excludable under Rule 1100(c)(3)(ii). -5- 99-0943 CRIMINAL TERM Notwithstanding, defendant, citing Commonwealth v. McLaughlin, 338 Pa. Super. 615 (1985), and Commonwealth v. Knupp, 340 Pa. Super. 304 (1985), maintains that because no evidence was submitted at the hearing to dismiss the information that he was informed of his rights and made a voluntary waiver of Rule 1100 when he asked for a continuance to obtain new counsel on March 17~, the period during the continuance that was granted is not excludable? McLaughlin and Knupp were waiver cases that are not applicable because the continuance here was granted under Rule 1100(c)(3)(ii), not Rule 1100(c)(2) that provides that in determining the period for commencement of trial there shall be excluded therefrom "any period of time for which the defendant expressly waives Rule 1100." Accordingly, defendant's motion to dismiss the information was (DATE) Edgar B. Bayley, J. Defendant did not testify at the hearing. 9 This resolution makes it unnecessary to determine whether the continuances of defendant's preliminary hearing ordered by the District Justice on December 16, 1998, and April 7, 1999, because of a full docket of hearings on those days would be excludable based on judicial delay. See Commonwealth v. DeBlase, 542 Pa. 22 (1995). -6- 99-0943 CRIMINAL TERM Jaime Keating, Esquire For the Commonwealth William Braught, Esquire For the Defendant :saa -7-