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HomeMy WebLinkAbout92-2211 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS of CUMBERLAND COUNTY, PENN NO. 2211 CRIMINAL 1992 Si'LVANIA v. CHARGE: (A) DUI (B) DRIVERS REQUIRED TO BE LICENSED (SUM.) (D) ONE-WAY ROADWAYS ERIK D. WHITAKER AND ROTARY TRAFFIC AFFIANT; PISLANDS (SUM.) TL. MICHAEL OPE PA. R. GRIM. P. 1100 BEFORE OLER J. ORDER OF COURT AND NOW, this 20th day of April, 1993 Upon consideration of Defendant's Motion To Dismiss pursuant to Pa. R. Crim. p. 1100 and the Answer of the Commonwealth, and following a hearing, the Motion is DENIED. Defendant is directed to appear for trial during the week of April 19 1993, at the call of the District Attorney. BY THE COURT, d J. esley Oler, J . J. Alison Taylor, Esq. Assistant District Attorney William Braught, Esq. Assistant Public Defender :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2211 CRIMINAL 1992 CHARGE: (A) DUI V. (B) DRIVERS REQUIRED TO BE LICENSED (SUM.) (D) ONE-WAY ROADWAYS AND ROTARY TRAFFIC ERIK D. WHITAKER ISLANDS (SUM.) AFFIANT: PTL. MICHAEL HOPE PA. R. CRIM. P. 1100 BEFORE OLER J. OPINION AND ORDER OF COURT Oler, J. For disposition in this case, in which Defendant is charged with driving the influencer and two summary under offenses, 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 Monday, April 19, 1993. Based upon the evidence presented at the following Findings of Fact, Discussion and Order of Court ahearing' the re made and entered: FINDINGS OF FACT 1. The Defendant and moving party is Erik D. Whitaker. 2. On December 6, 1991, Defendant was arrested by Camp Hill Borough Officer Michael L. Hope for driving under the influence. Police 3. When he was arrested, Defendant gave an address of 347r/z Crescent Street, Harrisburg, Dauphin County, Pennsylvania, and a phone number, and said that he was 1 Act of June 17, 1976, P.L. 162, §1, a6 amended, 75 Pa. C.S. §3731 (1992 S 2 Pa. R. Crim. P. 1100. upp.)' No. 2211 Criminal 1992 employed as a meat cutter at Valley Food in Harrisburg; he had no driver's license with him. 4. A check of the Defendant's PennDot records by the Officer indicated that he lived in Philadelphia, but Defendant said that he did not; he gave the Officer the name of his mother, advising that she lived in Philadelphia, but did not provide an address for her. 5. The Complaint was filed by the Officer on December 11, 1991. 6. On January 12, 1992, a summons was mailed to the Defendant, but was returned unclaimed to the district justice on January 30, 1992. 7. On February 5, 1992, an arrest warrant was issued for the Defendant, and the Officer entered the warrant in the Metro police department computer system. 8. The Officer attempted to contact Defendant by telephone, using the number Defendant provided, but the telephone was disconnected. 9. The Officer attempted to serve the warrant at 347%2 Crescent Street, Harrisburg, Pennsylvania, but initially got no answer at the door; subsequently, the Officer was told by a woman at the residence that the person he was seeking was not there. 10. The Officer contacted the Cumberland and Dauphin County prisons and probation offices in an attempt to locate the Defendant, but was unsuccessful. 11. The Officer attempted to locate Defendant's address through the postal 2 No. 2211 Criminal 1992 system, but was unsuccessful. 12. In late summer or early fall of 1992, the Officer contacted Valley Food in Harrisburg and was told that it had no knowledge of Defendant. 13. On November 10, 1992, Defendant was arrested on the warrant herein by Harrisburg City police when he sought their assistance as a result of car trouble. 14. On November 18, 1992, Defendant waived a preliminary hearing; he was formally arraigned on March 5, 1993, at which time he entered a plea of not guilty. 15. Defendant testified at the hearing on the instant motion that he had had his telephone disconnected because of calls from women to his brother; that he moved at some point from the Crescent Street address to the home of his fiance at 945 South 16th Street in Harrisburg, but did file a forwarding address with the post office; that he did at one time work for Valley Food, but left that employment before the Officer had checked there; and that a phone number appeared for him, at the South 16th Street address, in the Harrisburg Metropolitan Bell Telephone Book issued in May of 1992.3 16. The Officer testified that he had not checked that particular telephone book, and had a doubt that it was available at his police station in Cumberland County. DISCUSSION Under Pennsylvania Rule of Criminal Procedure 1100, "Wrial in a court case in 3 The latter testimony was confirmed by a page from the phone book. Defendant's Exhibit 1; other parts of the testimony were supported by testimony from his fiance, now his wife. 3 No. 2211 Criminal 1992 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 filed." Pa. R. Crim. P. 1100(a)(3). However, the Rule also provides as follows: In determining the period for a commencement of trial, there shall be excluded therefrom ... the period of time between the filing of the written complaint and the defendant's arrest; provided that the defendant could not be apprehended because his whereabouts were unknown and could not be determined by due diligence ... [and] such period of delay at any stage of the proceedings as results from ... the unavailability of the defendant ...." Pa. R. Crim. P. 1100(c). With respect to a motion for dismissal based upon Rule 1100, "[w]hen the hearing court is attempting to determine whether the Commonwealth exercised due diligence in attempting to arrest the defendant, the focus should be on efforts that were made and not on efforts which could have been made to arrest the defendant." 1 Wasserbly, Pennsylvania Criminal Practice §23.11 (1972). In the present case, it is not necessary to conclude that the Defendant acted in any way in bad faith to conclude that the period of time between the filing of the Complaint, on December 11, 1991, and his eventual arrest on November 10, 1992, should be excluded from the computation of the period for a commencement of trial under Pennsylvania Rule of Criminal Procedure 1100. Although the return of the summons undelivered to the district justice and the lack of success of Officer Hope in 4 No. 2211 Criminal 1992 securing a new address for Defendant through the postal system may seem inconsistent with his testimony that he had filed a forwarding address with postal authorities, and the lack of recognition of him by Valley Food may seem to contradict his employment testimony, it seems probable to the Court that both Defendant and the Officer have testified truthfully on these points. The focus, however, is on the efforts of the Commonwealth to locate the Defendant, and the fact that events may have conspired to frustrate the success of the efforts does not diminish the degree of diligence exercised. The Court believes that the Commonwealth in this case did exercise due diligence in attempting to ascertain Defendant's whereabouts. With the period of time between the filing of the Complaint and the Defendant's arrest being excluded from the computation, the Commonwealth is well within the period of time for commencement of trial. For this reason, the following Order will be entered: ORDER OF COURT AND NOW, this 20th day of April, 1993, upon consideration of Defendant's Motion To Dismiss Pursuant to Pa. R. Crim. P. 1100 and the Answer of the Commonwealth, and following a hearing, the Motion is DENIED. Defendant is directed to appear for trial during the week of April 19, 1993, at the call of the District Attorney. 5 No. 2211 Criminal 1992 BY THE COURT, _s/ J. Wesley Oler Jr J. Wesley Oler, Jr. J. Alison Taylor, Esq. Assistant District Attorney William Braught, Esq. Assistant Public Defender :rc