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HomeMy WebLinkAbout92-1804 CriminalCOMMONWEALTH OF PENNSYLVANIA V. TERESA GALLAGHER, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 1804 CRIMINAL 1992 CHARGE: DRIVING UNDER THE INFLUENCE IN RE: DEFENDANT'S MOTION TO DISMISS INFORMATION BEFORE OLER. J. ORDER OF COURT AND NOW, this 274day of March, 1993, upon consideration of Defendant's Motion To Dismiss the Information and Charges Pursuant to Pa. R. Cr. P. 1100, and following a hearing, the Motion is DENIED. BY THE COURT, esley Oler, J . J. Kimberly Kardelis, Esq. Assistant District Attorney Gary Lysaght, Esq. Attorney for Defendant : rc COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 1804 CRIMINAL 1992 TERESA GALLAGHER, CHARGE: DRIVING UNDER THE Defendant INFLUENCE IN RE: DEFENDANT'S MOTION TO DISMISS INFORMATION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. For disposition in the present case, in which the Defendant is charged with driving under the influence,' is a motion filed on behalf of Defendant to dismiss the information on the basis of Rule 1100.2 A hearing was held on the motion on Friday, March 19, 1993. Based upon the evidence presented at the hearing, the following Findings of Fact, Discussion and Order of Court are made and entered: FINDINGS OF FACT 1. The Defendant and moving party is Teresa Gallagher. 2. Defendant was arrested for driving under the influence on Sunday, January 19, 1992, by Wormleysburg Borough Police Officer Wendy L. Dressler, affiant herein. 3. Officer Dressler filed the complaint in this matter with a district justice on January 21, 1992. 4. The summons sent to Defendant by the district justice, with notice of a preliminary hearing to be held on March 25, 1992, was returned unclaimed to the district justice on February 21, 1992, and an arrest warrant was issued for the 1 Act of June 17, 1976, P.L. 162, §l, as amended, 75 Pa. C.S. §3731 (1992 Supp.). 2 Pa. R. Crim. P. 1100. NO. 1804 CRIMINAL 1992 Defendant on March 25, 1992. 5. The aforesaid arrest warrant was executed on April 1, 1992. 6. A new preliminary hearing was scheduled for April 8, 1992, and continued because of the unavailability of Defendant's public defender to April 15, 1992. 7. It has been stipulated by counsel that the period from February 21, 1992, to April 15, 1992, is excludable under Pa. R. Crim. P. 1100(c) with respect to a determination of the period for commencement of trial. 8. Inadvertently, Officer Dressler missed the preliminary hearing scheduled for April 15, 1992, because she thought it was to be held the following week, and the complaint was dismissed by the district justice. 9. On July 14,1992, the Commonwealth filed a Petition with this Court to refile the complaint, and the Petition was granted by the Honorable Harold E. Sheely, President Judge, on July 16, 1992. 10. Upon returning from a symposium in Florida in connection with her work, Officer Dressler refiled the complaint before another district justice on August 7, 1992. 11. A preliminary hearing on the refiled charge was scheduled by the new district justice for August 31, 1992. 12. At the time of the preliminary hearing before the new district justice, it appeared that the affiant's employer proposed to stenographically record the hearing, and in order to determine the propriety of such action Officer Dressler requested a NO. 1804 CRIMINAL 1992 continuance of the hearing for one week. 13. The preliminary hearing was rescheduled for October 5, 1992. 14. Defendant waived the preliminary hearing on October 5, 1992. 15. By letter to Defendant dated November 30, 1992, the Cumberland County District Attorney's Office advised that it was considering approval of Defendant for ARD, and indicated that further consideration would necessitate the submission of a waiver of Defendant's speedy trial rights; apparently, Defendant did not submit the waiver. 16. Defendant was formally arraigned on March 5, 1993, and her trial is scheduled for the trial term commencing Monday, April 5, 1993. 17. Defendant has not been incarcerated with respect to this charge. DISCUSSION Statement of the law. Under Pennsylvania Rule of Criminal Procedure 1100(a)(3), "Wrial 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 three hundred sixty-five (365) days from the date on which the complaint is f"�led." The principles of law to be applied in cases where complaints have been refiled have been discussed in a number of appellate court decisions. "The problem of calculating Rule 1100 run time in light of multiple complaints is one which we have addressed on numerous occasions. Generally, it can be stated KI NO. 1804 CRIMINAL 1992 that the analysis resolves into a two step approach: (1) whether the prior complaint was properly dismissed; and (2) whether the record indicates an attempt by the Commonwealth to circumvent Rule ll00." Commonwealth v. Navarro, 276 Pa. Super. 153, 158, 419 A.2d 141,144 (1980), aff d, 499 Pa. 279, 453 A.2d 308 (1982). As a general rule, a period of time during which a charge is not pending is not included in the period prescribed by Rule ll00 for commencement of trial. See Commonwealth v. Sweeney, 376 Pa. Super. 476, 546 A.2d 624 (1988), allocatur denied, 521 Pa. 620, 557 A.2d 723 (1989). "'When an initial complaint has been withdrawn or otherwise dismissed, the [Rule ll00] period begins to run anew with the filing of a subsequent complaint ... if (1) the earlier complaint was properly dismissed by a competent magisterial or judicial authority, and (2) the record does not reveal evidence of a prosecution attempt to circumvent Rule ll00."' Commonwealth v. Schafer, 394 Pa. Super. 493, 497, 576 A.2d 392, 394 (1990), allocatur denied, 527 Pa. 644, 593 A.2d 417 (1991), quoting Commonwealth v. Gehman, 381 Pa. Super. 244, 247, 553 A.2d 447, 449 (1989). A "proper dismissal" in this context has been interpreted "`to mean that proceedings on the charges contained in the complaint were dismissed by a competent magisterial or judicial authority who committed no error of law in doing so. This would include ... dismissal for failure to make out a prima facie case. "' Commonwealth v. McClain, 325 Pa. Super. 29, 32, 472 A.2d 630, 631 (1984), quoting Commonwealth v. Ardolino, 304 Pa. Super. 268, 276, 450 A.2d 674, 679 (1982). 4 NO. 1804 CRIMINAL 1992 Application of law to facts. In this case, an analysis of the record reveals that the prior complaint was properly dismissed and that there was no attempt by the prosecution to circumvent Rule 1100. For this reason, the period for commencement of trial runs from the filing of the second complaint on August 7, 1992, and the Commonwealth remains well within the 365 -day period prescribed by Rule ll00. ORDER OF COURT AND NOW, this -TA day of March, 1993, upon consideration of Defendant's Motion To Dismiss the Information and Charges Pursuant to Pa. R. Cr. P. 1100, and following a hearing, the Motion is DENIED. Kimberly Kardelis, Esq. Assistant District Attorney Gary Lysaght, Esq. Attorney for Defendant rc BY THE COURT, TZ ,Q J. Wesley Oler, Jr. J. 5