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HomeMy WebLinkAbout99-0943 criminal appealJ. A25001/00 COMMONWEALTH OF PENNSYLVANIA, Appellee V. STEVEN KEITH KUHN, Appellant IN THE SUPERIOR COURT OF P E N N SYLVAN IA No. 1558 MDA 1999 Appeal from the Judgment of Sentence August 31, 1999, In the Court of Common Pleas of Cumberland County, Criminal, No. 99-0943 BEFORE' McEWEN, P.J., LALLY-GREEN, and HESTER, JJ. MEMORANDUM: I=ILEDJULtO L~t]II This appeal has been taken from the judgment of sentence to serve a total term of imprisonment of from 90 days to 23 months, imposed after appellant was found guilty, following a jury trial, of operating a motor vehicle while under the influence of alcohol to a degree that rendered him incapable of safe driving.~ Appellant argues that he is entitled to discharge due to the failure of the Commonwealth to comply with the requirements of Pa.R.Crim. P. 1100. We disagree and, therefore, affirm the judgment of sentence. The record reveals the following chronology: July 2, 1998 Criminal complaint filed charging appellant with driving under the influence. August 27, 1998 Preliminary hearing is continued until October 21, 1998, because appellant requests a public defender who is appointed by the court. z 75 Pa.C.S. § 3731(a)(1). J. A25001/00 October 21, 1998 Preliminary hearing is continued until December 16, 1998, at the request of the arresting officer who is unavailable. December 16, 1998 Preliminary hearing is continued until March 17, 1999, due to the full docket of the district justice. March 17, 1999 Preliminary hearing is continued until Ap?il 21, 1999, as appellant informs the district justice that he does not wish to be represented by his appointed counsel from the public defender's office. March 19, 1999 Preliminary hearing is rescheduled for April 7, 1999, as the arresting officer asked for the date to be changed because he had military training on' April 21, 1999. March 30, 1999 Preliminary hearing is continued until April 28, 1999, due to the full docket of the district justice, and was later rescheduled for May 5, 1999. May 5, 1999 Preliminary hearing was conducted. July 13, 1999 Following a hearing, an order is entered denying the motion of appellant to dismiss the prosecution under Pa.R.Crim.P. 1100. July 21, 1999 Trial of appellant commences. Rule 1100 of the Pennsylvania Rules of Criminal Procedure provides, in relevant part: Rule :1.:1.00. PROMPT TRIAL (a)(3) Trial in a court case in which a written complaint is filed against the defendant, where the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed. -2- J. A25001/00 (c) 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 defendant or the defendant's attorney; (g) 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. ]:f 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. ]:f, on any successive listing of the case, the Commonwealth is not prepared to proceed to trial on the date fixed, the court shall determine whether the Commonwealth exercised due diligence in attempting to be prepared to proceed to trial .... Pa.R.Crim. P. 1:~00(a)(3), (c)(3)(ii) and (g). The trial court, following the July 13, 1999, hearing denied the motion to dismiss. -3- 3. A25001/00 Our standard of review of a decision of the trial court rejecting a Rule 1100 claim is whether the trial court abused its discretion. Commonwealth v. Matis, 551 Pa. 220, 227, 710 A.2d 12, 15 (1998); Commonwealth v. Malinowski, 543 Pa. 350, 359, 671 A.2d 674, 678-79 (1996). The proper scope of review in determining the propriety of the trial court's ruling is limited to the evidence produced at the Rule 1100 evidentiary hearing2 and the findings of the trial court. Commonwealth v. Marls, supra at 227, 710 A.2d at 15; Commonwealth v. Edwards, 528 Pa. 103, 105, 595 A.2d 52, 53 (1991). Appellant argues that he is entitled to discharge under Rule 1100 because "[his] trial commenced 384 days after the filing of the criminal complaint and any delays in bringing [appellant] to trial were not attributable to [appellant]." Our review of the record, however, indicates that appellant requested a continuance on March 17, 1999, when he appeared at his preliminary hearing and, as stated in his brief, "informed the 2 We note that the certified record does not contain the transcript of the Rule 1100 hearing. ]:t is the responsibility of the appellant to supply this Court with a complete record for purposes of appeal, Pa.R.A.P. 1911, as this Court may not consider any information which is not contained in the certified record. Smith v. Smith, 637 A.2d 622, 624 (Pa.Super. 1994), appeal denied, 539 Pa. 680, 652 A.2d 1325 (1994) ("IA] failure by an appellant to insure that the original record certified for appeal contains sufficient information to conduct a proper review constitutes a waiver of the issue sought to be examined."); Commonwealth v. (~uinlan, 488 Pa. 255, 412 A.2d 494, 496 (1980); Commonwealth v. Buehl, 588 A.2d 522, 524 (Pa.Super. 1991), appeal denied, 528 Pa. 627, 598 A.2d 281 (1991). While this defect is substantial, in the interest of judicial economy, we have proceeded to review the merits of the claim based on the record available. -4- J. A25001/00 district justice that he did not wish to be represented by the attorney then present from the public defender's office." As a result of appellant's request the preliminary hearing was rescheduled for April 21, 1999, but thereafter further delayed by the district justice and the Commonwealth, until May 5, 1999, at which time the hearing was conducted. The continuance on March 17, 1999, which resulted in the rescheduling of the preliminary hearing until April 21, 1999, resulted from the delay attendant the pronouncement of appellant that he did not want to be represented by his current public defender. Therefore, these 34 days "cannot be included in the period for calculating when trial must commence under Rule 1100(c)(3)(ii) of the Pennsylvania Rules of Criminal Procedure." Commonwealth v. Abdullah~ 539 Pa. 351, 355, 652 A.2d 811, 813 (1995). The trial of appellant commenced on July 21, 1999, which was 384 days after the criminal complaint was filed against him on July 2, 1998. Since 34 days are excludable under Rule 1100(c)(3)(ii), appellant was brought to trial prior to the expiration of the 365-day period established by Rule 1100. Appellant, therefore, was not entitled to any relief under Rule 1100. We, therefore, affirm the judgment of sentence of the distinguished Judge Edgar B. Bayley. Judgment of sentence affirmed. -5- 3. A25001/00 Date: -6-