HomeMy WebLinkAboutCP-21-CR-0002857-2010
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
JASON CARR WHITTEN : CP-21-CR-2857-2010
IN RE: OMNIBUS PRETRIAL MOTION
MEMORANDUM OPINION AND ORDER OF COURT
Masland, J., January 11, 2012:--
Before the court is Defendant’s omnibus pretrial motion seeking dismissal
of the charges for a violation of the Defendant’s due process and speedy trial
rights under the constitutions of Pennsylvania and United States. At a hearing on
December 20, 2011, it was established that the incident in question took place on
July 12, 2008 and that the criminal complaint charging the Defendant with simple
assault was filed on May 14, 2010. As more fully delineated in the
Commonwealth’s brief, the Defendant waived his speedy trial rights under
Pa.R.Crim.P. 600 twice – once for consideration of ARD and a second time for a
trial continuance. After excluding those periods, it is clear that 277 days have
elapsed since the filing of the criminal complaint. Although on the basis of this
1
calculation alone, the delay in this matter is not “presumptively prejudicial,” we
will look beyond the mere requirements of Rule 600.
At the aforesaid hearing, the Defendant called Detective Jeffrey Kurtz to
testify. He explained credibly that the delay in filing the criminal complaint was
See Commonwealth v. Bobitski, 600 A.2d 107, 109 (Pa. Super. 1995), cited by
1
Defendant for the proposition that the court must engage in a two-step analysis
to determine if the Defendant’s speedy trial rights were violated, with the first
prong being a determination of whether the delay was so long as to be
“presumptively prejudicial.”
CP-21-CR-2857-2010
partially due to deployment of the alleged victim, Mr. Barrick, related to his
service in the Georgia National Guard. Further, Mr. Barrick’s ability to travel was
limited by his alleged injuries. Detective Kurtz explained that there were blocks
of time during which the investigation was on “inactive status” because he was
having difficulty establishing contact with Mr. Barrick.
Ultimately, Detective Kurtz was able to track down the witnesses and file
the charges before the statute of limitations ran. There is nothing in the record to
substantiate counsel’s argument that the Defendant cannot present a defense to
a seemingly straightforward assault case. The mere passage of time has not
prejudiced the Defendant. Therefore, based on the credible testimony of
Detective Kurtz and the fact that there is no Rule 600 violation, we find that the
allegations of prejudice by the Defendant are unfounded and enter the following
order:
ORDER OF COURT
AND NOW, this day of January, 2012, following a hearing on
Defendant’s omnibus pretrial motion and after consideration of the parties’ briefs,
DENIED.
Defendant’s motion is
By the Court,
Albert H. Masland, J.
Emily R. Provencher, Esquire
Assistant District Attorney
Karl E. Rominger, Esquire
For Defendant :saa
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
JASON CARR WHITTEN : CP-21-CR-2857-2010
IN RE: OMNIBUS PRETRIAL MOTION
ORDER OF COURT
AND NOW, this day of January, 2012, following a hearing on
Defendant’s omnibus pretrial motion and after consideration of the parties’ briefs,
DENIED.
Defendant’s motion is
By the Court,
Albert H. Masland, J.
Emily R. Provencher, Esquire
Assistant District Attorney
Karl E. Rominger, Esquire
For Defendant :saa