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HomeMy WebLinkAbout91-1711 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1711 CRIMINAL 1991 CHARGE: (A)DUI (B)PERIOD FOR REQUIRED LIGHTED LAMPS (C) DUS V. AFFIANT: DAVID TILDEN 1651 CRIMINAL 1991 CHARGE: (A)DUI (B)DRIVING RIGHT SIDE OF ROADWAY (C) DUS JEFFREY RAY PEALER AFFIANT: TPR. ERNEST LEEDON IN RE: DEFENDANT'S AMENDED OMNIBUS MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this 21st day of April, 1993, upon consideration of Defendant's Amended Omnibus Motion, and following a hearing, the Motion is WITHDRAWN as it relates to the alleged filing of informations without leave of court, DENIED to the extent that it requests dismissal pursuant to the Interstate Agreement on Detainers and to the extent that it seeks suppression of a breathalyzer test result, and DEFERRED to the trial judge for disposition to the extent that it seeks an evidentiary ruling prohibiting the view by the trier of fact of that portion of a videotape in which Defendant is given, or offered, a horizontal gaze nystagmus test. Defendant's counsel is directed to restate the latter portion of the Motion to the trial judge. By the Court, Viie-sley Ole Jr.,�J. Michael Schwoyer, Esquire Assistant District Attorney Samuel W. Milkes, Esquire Assistant Public Defender wcy COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1711 CRIMINAL 1991 CHARGE: (A)DUI (B)PERIOD FOR REQUIRED LIGHTED LAMPS (C)DUS V. AFFIANT: DAVID TILDEN 1651 CRIMINAL 1991 CHARGE: (A)DUI (B)DRIVING RIGHT SIDE OF ROADWAY (C) DUS JEFFREY RAY PEALER AFFIANT: TPR. ERNEST LEEDON OLER, J. IN RE: DEFENDANT'S AMENDED OMNIBUS MOTION BEFORE OLER, J. OPINION AND ORDER OF COURT In the present matter, in which Defendant is charged with two incidents of driving under the influencel and several summary offenses, an Amended Omnibus Motion has been filed on his behalf. The Motion, which follows a series of pro se pretrial motions and orders,2 as drafted seeks dismissal of the charges pursuant to the Interstate Agreement on Detainers,3 1. Act of June 17, 1976, P.L. 162, Section 1, as amended, 75 Pa. C.S. Section 3731 (1992 Supp.). 2. See Commonwealth's Exhibits 1, 2. Defendant is now represented by the Cumberland County public defender. See Order of Court, April 20, 1993. 3. Act of July 9, 1976, P.L. 586, Section 2, 42 Pa. C.S. Section 9101. dismissal of the informations on the ground that they were filed without leave of court under Pa. R. Crim. P. 231,4 suppression of breathalyzer test results at No. 1711 Criminal 1991 on the basis of inadequate implied consent warnings and improper inducement or misrepresentation, and an evidentiary ruling proscribing use of a booking center videotape as it relates to the horizontal gaze nystagmus test. A hearing was held on the Motion on Tuesday, April 20, 1993. At the hearing, Defendant withdrew the portion of the Motion relating to the filing of the informations5 and the Court deferred to the trial judge disposition of the portion of the Motion relating to the horizontal gaze nystagmus test. 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. Defendant and moving party is Jeffrey Ray Pealer. 2. The present Amended Omnibus Motion has been preceded by a number of other pretrial motions within the scope of Pa. R. Crim. P. 306, previously ruled upon. 4. Pa. R. Crim. P. 231 relates to the presentation of an information without a preliminary hearing. 5. It appears that the Commonwealth did secure leave of court to file the informations. 3. On or about April 9, 1991, Defendant was arrested for driving under the influence, this charge being eventually docketed at No. 1711 Criminal 1991. 4. At a local booking center, Miranda warnings were given to Defendant and he was asked to submit to a breathalyzer test. 5. At the aforesaid time and place, Defendant asked whether he would be leaving after the test and was told that he would, after the process of additional questions had also been completed. 6. At the aforesaid time and place, Defendant was given the implied consent warnings, including the advice that he was not entitled to an attorney, but he was not told why the right to an attorney did not apply to the breathalyzer test procedure. 7. Defendant submitted to the breathalyzer test, with results of .302% and .299%. 8. On or about February 18, 1992, a bench warrant was issued by this Court for failure of Defendant to appear on these charges. 9. On or about June 29, 1992, Pennsylvania detainers with respect to these charges were lodged against Defendant at Leavenworth Federal Prison in Kansas, where he was serving a sentence for driving under the influence and from which his release was tentatively scheduled for May 19, 1993. 10. Notwithstanding receipt of written information as to his right under the Interstate Agreement on Detainers to secure final disposition of the charges within 180 days of a written request for the same, no such request was made until on or about December 8, 1992.6 DISCUSSION With respect to the portion of Defendant's Motion based upon the Interstate Agreement on Detainers, it is argued on behalf of Defendant that he should be discharged under the provision of the Agreement providing for final disposition of a case within 180 days.7 However, the condition precedent to such a requirement -- a written request for such disposition$ -- was not made by Defendant until on or about December 8, 1992. The Commonwealth remains, at this time, well within the statutory 6. Defendant testified that he had expected to be extradited within 10 to 14 days of the lodging of the detainers. 7. "Wherever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within 180 days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer's jurisidiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaints ... ." Act of July 9, 1976, P.L. 586, Section 2, 42 Pa. C.S. Section 9101. 8. Id. period for trial as provided for in the Agreement. With respect to the portion of Defendant's Motion seeking suppression of the breathalyzer test result, it is argued on behalf of Defendant that the implied consent warnings were inadequate and that the response to his question about leaving following the administration of the test represented an impropriety in the nature of an unlawful inducement or misrepresentation. However, neither of these arguments is persuasive. First, as to the implied consent warnings, the cases involving defective warnings afford relief from license suspensions arising out of chemical test refusals on the theory that the refusals may have resulted from confusion as to the right to counsel. See, e.g., Commonwealth, Department of Transportation, Bureau of Driver Licensing, Pa. Commw. -j583 A.2d 31 (1990) (cited by Defendant at hearing). These cases have no applicability where a test has been submitted to, and they can provide no basis for suppression of the test result. Second, as to an alleged impropriety in a response to Defendant's question as to whether he would be leaving following the administration of the breathalyzer test, a review of the videotape conversation in this regard fails to suggest any impropriety. The response was a procedural one, confirming Defendant's suggestion by way of inquiry that the processing was nearing an end, and no evidence of unlawful inducement or misrepresentation can be discerned in the procedure. entered: For these reasons,l the following Order will be ORDER OF COURT AND NOW, this 21st day of April, 1993, upon consideration of Defendant's Amended Omnibus Motion, and following a hearing, the Motion is WITHDRAWN as it relates to the alleged filing of informations without leave of court, DENIED to the extent that it requests dismissal pursuant to the Interstate Agreement on Detainers and to the extent that it seeks suppression of a breathalyzer test result, and DEFERRED to the trial judge for disposition to the extent that it seeks an evidentiary ruling prohibiting the view by the trier of fact of that portion of a videotape in which Defendant is given, or offered, a horizontal gaze nystagmus test. Defendant's counsel is directed to restate the latter portion of the Motion to the trial judge. By the Court, Js/ J. Wesley Oler, Jr. J. Michael Schwoyer, Esquire Assistant District Attorney Samuel W. Milkes, Esquire Assistant Public Defender 1. An additional ground for denial of Defendant's Motion is present in Pa. R. Crim. P. 306: "Unless otherwise required in the interests of justice, all pretrial requests for relief shall be included in one omnibus pretrial motion."