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HomeMy WebLinkAbout92-1197 CriminalCOMMONWEALTH v. KEVIN MICHAEL KNOX IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1197 CRIMINAL 1992 CHARGE: THEFT OF LEASED PROPERTY AFFIANT: PTL. WILLIAM PAGE IN RE: MOTION TO DISMISS PURSUANT TO PA. R. CRIM. P. 1100 BEFORE OLER J. ORDER OF COURT AND NOW, this 19th day of April, 1993, upon consideration of Defendant's Motion To Dismiss Pursuant to Pa. R. Crim. P. 1100 and the Commonwealth's Answer thereto, and following a hearing, the Defendant's Motion is DENIED. The Defendant is directed to appear for trial with counsel on Tuesday, April 20, 1993, at 9:00 a.m. BY THE COURT, M Wesley Ole r. J. Michael Schwoyer, Esq. Assistant District Attorney William Braught, Esq. Assistant Public Defender :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 1197 CRIMINAL 1992 V. CHARGE: THEFT OF LEASED PROPERTY KEVIN MICHAEL KNOX AFFIANT: PTL. WILLIAM PAGE IN RE: MOTION TO DISMISS PURSUANT TO PA. R. CRIM. P. 1100 BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. For disposition in the present case, in which the Defendant is charged with theft of leased property, is a motion filed on behalf of Defendant to dismiss the information on the basis of Rule 1100.1 A hearing was held on the Motion on Monday, April 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 Kevin Michael Knox. 2. A Complaint against the Defendant was filed on November 29, 1991, charging him with theft of certain videotapes which he had allegedly leased from Pletcher's Video in Mechanicsburg, Cumberland County, Pennsylvania. 3. Prior to the filing of the Complaint, one of the video store owners had personally visited the Mechanicsburg residence Defendant had listed on a card filed with the store,2 in an attempt to retrieve the leased tapes, and was told by a woman who answered the door that he was not there, that she did not know where he was, 1 Pa. R. Crim. P. 1100. 2 609B Geneva Drive, Apt. 13. 1197 CRIMINAL 1992 and that she had not seen him for a while. 4. The owner asked the woman to have Defendant call the store if she ever saw him again. 5. Prior to the filing of the Complaint, the store owners sent two certified letters to Defendant at 732 S. 26th Street, Harrisburg, Dauphin County, Pennsylvania, which was the address shown on his PennDot records as his residence. 6. Both letters were returned unclaimed. 7. A summons was sent to the Defendant at 732 S. 26th Street, Harrisburg, Dauphin County, Pennsylvania, by the district justice in whose office the Complaint was filed, on November 29, 1991, and the same was returned undelivered by the Post Office on December 24, 1991, at which time an arrest warrant was issued. 8. On January 2, 1992, the Defendant failed to appear for a preliminary hearing. 9. On July 27, 1992, a rule to show cause was issued by this Court, directing the Defendant to show cause why an information should not be filed. This rule was sent to the Defendant at 732 South 26th Street, Harrisburg, Dauphin County, Pennsylvania and was returned unclaimed. 10. On August 11, 1992, the Court granted the Commonwealth leave to file the information, and on September 29, 1992, the information was filed. 11. On October 1, 1992, the Defendant failed to appear for an arraignment, and 2 1197 CRIMINAL 1992 on October 7, 1992, a bench warrant was issued as a result. 12. A police check of criminal records with respect to Defendant failed to yield a good address for him. 13. On November 20, 1992, the Defendant was finally arrested on an unrelated matter, at 11 South York Street, Mechanicsburg, Cumberland County, Pennsylvania, at which time it was discovered that there were 14 outstanding warrants against him. 14. On December 31, 1992, a preliminary hearing was held. 15. On February 9, 1993, the Defendant was formally arraigned on this charge. 16. Defendant did not testify at the hearing on his Motion, and no evidence was presented on his behalf. DISCUSSION Under Pennsylvania Rule of Criminal Procedure 1100, "[t]rial 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 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 3 1197 CRIMINAL 1992 period of delay at any stage of the proceedings as results from ... the unavailability of the defendant...." Pa. R. Crim. P. 1100(c). In the present case, the Defendant made himself unavailable from the commencement of efforts to locate him by the video store owners, and continued to be unavailable until he was finally located months after the filing of the Complaint, at which time 14 warrants had accumulated against him. Under these circumstances, and with no suggestion in the record that additional efforts to locate him would have been successful, the Court concludes that at least the period from November 19, 1991, to the date of his arrest is excludable under Pa. R. Crim. P. 1100(c). The Commonwealth thus remains well within the time period under Rule 1100 when the Defendant may be tried. ORDER OF COURT AND NOW, this 19th day of April, 1993, upon consideration of Defendant's Motion To Dismiss Pursuant to Pa. R. Crim. P. 1100 and the Commonwealth's Answer thereto, and following a hearing, the Defendant's Motion is DENIED. The Defendant is directed to appear for trial with counsel on Tuesday, April 20, 1993, at 9:00 a.m. BY THE COURT, s/ J. Wesley Oler Jr J. Wesley Oler, Jr. J. rd 1197 CRIMINAL 1992 Michael Schwoyer, Esq. Assistant District Attorney William Braught, Esq. Assistant Public Defender :rc