HomeMy WebLinkAboutCP-21-CR-0000732-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (1-B) UNLAWFUL POSSESSION
: OF A SCHEDULE II
v. : CONTROLLED SUBSTANCE
: (COCAINE)
: (2) UNLAWFUL POSSESSION
: OF A SCHEDULE II
: CONTROLLED SUBSTANCE
: (OXYCODONE)
: (3) UNLAWFUL POSSESSION OF
: DRUG PARAPHERNALIA
RUDOLPH M. NICHOLSON :
OTN: K706036-2 : CP-21-CR-0732-2008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., August 13, 2010.
In this criminal case, Defendant was found guilty following a jury trial presided
over by the undersigned judge of unlawful possession of a Schedule II Controlled
Substance in the form of cocaine, unlawful possession of a Schedule II Controlled
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Substance in the form of oxycodone, and unlawful possession of drug paraphernalia; the
jury was deadlocked with respect to a charge of possession of cocaine with intent to
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deliver. On February 25, 2009, he received concurrent standard range sentences totaling
See Order of Court, In re: Jury Trial, January 22, 2009. The facts of this case were set forth in an
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earlier opinion by this court, dated June 5, 2009 (Oler, J.).
See Order of Court, In re: Jury Trial, January 22, 2009. A mistrial was declared as to that charge.
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Order of Court, In re: Mistrial, January 22, 2009. The Commonwealth subsequently indicated that
it did not intend to retry Defendant on the possession with intent to deliver charge. N.T. 4,
Sentencing Proceeding, March 3, 2009.
not less than six months, nor more than twelve months, in the Cumberland County
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Prison.
From the judgment of sentence, Defendant filed an appeal to the Pennsylvania
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Superior Court on April 2, 2009. The case was ultimately remanded to this court by the
Superior Court on June 17, 2010, to enable Defendant to file a statement of errors
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complained of on appeal and to secure the appointment of counsel, both of which he has
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now done.
The bases for the appeal, as expressed in Defendant’s counseled statement of
errors complained of on appeal, relate solely to the disposition of an omnibus pretrial
motion by the Honorable Kevin A. Hess of this court:
1. The Court erred when it denied the suppression motion
challenging the police search of the motel room, as this search was neither
within the permissible scope of a search incident to arrest nor supported by
probable cause and exigent circumstances that would excuse the absence of
a search warrant. Furthermore, the arrest of Mr. Nicholson was unlawful in
that there was not a proper warrant for his arrest.
2. The Court erred in [sic] when it denied the suppression
motion challenging the evidence seized from within the safe inside the
room, as this search was neither within a permissible scope of a search
incident to arrest nor supported by probable cause and exigent
circumstances that would excuse the absence of a search warrant.
3. The Court erred when it denied the motion to dismiss for a
violation of Rule 600 Pa. Rules of Criminal Procedure. The time analysis
Order of Court, In re: Sentencing, March 3, 2009; Presentence Investigation Report, dated
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February 25, 2009 (Oler, J.).
Defendant’s Notice of Appeal to the Superior Court, filed April 2, 2009.
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Commonwealth v. Nicholson, No. 579 MDA 2009 (Pa. Super. Ct. June 15, 2010).
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Concise Statement of the Errors Complained of on Appeal, filed July 22, 2010.
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should have been from the date of the first complaint, and the trial was
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outside of the permissible time.
The rationale for the disposition of Defendant’s omnibus pretrial motion has been
set forth in an opinion by President Judge Hess dated August 12, 2010, written pursuant
to Pennsylvania Rule of Appellate Procedure 1925(a). That opinion is incorporated herein
by reference and the Clerk of Courts is directed to transmit the record to the Superior
Court for purposes of disposition of Defendant’s appeal from the judgment of sentence.
BY THE COURT,
__________________
J. Wesley Oler, Jr., J.
Mathew P. Smith, Esq.
Chief Deputy District Attorney
Taylor P. Andrews, Esq.
Chief Public Defender
Concise Statement of the Errors Complained of on Appeal, filed July 22, 2010.
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