Commonwealth v. Kohler

7 Pa. D. & C.5th 493
CourtPennsylvania Court of Common Pleas, Delaware County
DecidedMarch 12, 2009
Docketno. 7975-05
StatusPublished

This text of 7 Pa. D. & C.5th 493 (Commonwealth v. Kohler) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Delaware County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Kohler, 7 Pa. D. & C.5th 493 (Pa. Super. Ct. 2009).

Opinion

NILON, J.,

BACKGROUND AND PROCEDURAL HISTORY

This is an appeal from the court’s judgment of sentence imposed on November 12,2008. The nature and history of the case are as follows:

On September 7,2005, a criminal complaint was filed against Stephen Kohler (appellant). The appellant was charged with: simple assault,1 recklessly endangering another person,2 criminal mischief,3 harassment,4 disorderly conduct,5 driving on roadways laned for traffic,6 following too closely,7 and reckless driving.8

On January 19,2006, the defendant was arraigned and the case was assigned to the Honorable Robert C. Wright. On January 19, 2006, Erv D. McLain, Esquire, entered his appearance for the defendant and the case was scheduled for a pretrial conference on February 27, 2006. On that date, the defendant requested a trial date, which was granted and a jury trial was scheduled for March 27, 2006; however, the court was unable to hear the matter on that date due to a homicide trial in the matter of Commonwealth v. Stanley, 5974-04. The trial was then sched[495]*495uled for April 24, 2006 before the Honorable Robert C. Wright. On April 24, 2006, a defense continuance was granted and the case was scheduled for May 30, 2006. On June 2, 2006, a criminal notice form was filed and the case was continued until July 10, 2006. On July 10, 2006, a criminal notice form was filed and the case was continued until August 7, 2006. On August 8, 2006, a criminal notice form was filed and the case was continued until October 2, 2006.

On October 2, 2006, a waiver of Rule 600 was filed and the case was continued until December 4,2006. The defendant requested and was granted a continuance from December 4, 2006 until January 22, 2007. On January 29, 2007, the case was continued until March 19, 2007. On March 20,2007, a criminal notice form was filed and the case was continued until May 7, 2007. On May 7, 2007, a criminal notice form was filed and the case was continued until July 23, 2007. Judge Wright was hospitalized on July 10, 2007 and was eventually relieved of his duties as a criminal trial judge on August 13, 2007. On August 15, 2007, this case was reassigned to the Honorable Joseph P. Cronin. On September 26, 2007, defendant filed a motion for dismissal pursuant to Rule 600. The Rule 600 motion hearing was held on October 26, 2007 and December 7, 2007. The matter was taken under advisement. On April 23, 2008, Judge Cronin issued a lengthy order with supporting findings of fact and conclusions of law denying appellant’s Rule 600 motion.

Thereafter, Judge Cronin continued the case because the court was commencing trials in other matters. Judge Cronin became president judge on January 7, 2008. On [496]*496May 9,2008, this case was transferred to the undersigned. A trial date was scheduled for May 27, 2008. On that date appellant requested a continuance until July 28, 2008. On that date, the court was conducting the trial of Commonwealth v. Garber, 1317-06 and the matter was continued until September 2, 2008. On September 2, 2008, appellant requested a continuance to September 10, 2008 and a jury trial commenced on that date.

On September 11, 2008, appellant was found guilty of the charges of criminal mischief (M-2) and reckless driving (S). Prior to sentencing appellant, this court ordered a pre-sentence investigation, as well as a psychological evaluation. On November 12, 2008, appellant was sentenced as follows: criminal mischief — 18 months probation, and reckless driving — a $200 fine. On December 16, 2008, defendant filed a notice of appeal. Consequently, on December 18, 2008, this court directed appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant filed a concise statement raising the following issues for appellate review:

“(1) Your defendant was sentenced on November 12, 2008 after being found guilty by a jury of his peers in the above-captioned matter.
“(2) Your defendant appeals this honorable court’s April 23,2008 order and opinion denying and dismissing defendant’s petition for relief pursuant to Pa.R.Crim.R 600.
“(3) The April 23, 2008 order and opinion denying and dismissing defendant’s Rule 600 petition was authored and entered by the Honorable Joseph R Cronin Jr.
[497]*497“(4) The docket entries and case activity which are in dispute relative to the Rule 600 contest occurred while the matter was assigned to the Honorable Robert C. Wright who has since been relieved of his duties with the Court of Common Pleas of Delaware County as of August 13, 2007.
“(5) In its April 23, 2008 opinion, the court properly made the following findings: [(a)-(j) are recitations from Judge Cronin’s findings of fact].
“(6) The court erred in its opinion and order of April 23, 2008 denying and dismissing defendant’s Rule 600 motion in the following particulars:
“(a) In failing to analyze the instant matter pursuant to the mandates of Commonwealth v. Matis, 551 Pa. 220, 228, 710 A.2d 12, 16 (1998) focusing on and failing to find that the Commonwealth did not exercise due diligence in the above-captioned matter;
“(b) In concluding that the 25-month delay (741 days) was presumptively prejudicial pursuant to Commonwealth v. Africa, 524 Pa. 118, 569 A.2d 920 (1990) but finding that defendant experienced no actual prejudice by the delay.
“(c) In failing to appropriately assess pursuant to Commonwealth v. Kimbrough, 872 A.2d 1244 (Pa. Super. 2005) the three considerations pursuant to which a finding of prejudice must be assessed in light of the interests the speedy trial rule was designed to protect. The three interests are: (1) the prevent oppressive pretrial incarceration [sic]; (2) to minimize anxiety and concerns of the accused; and (3) to limit the possibility that the defense will be impaired, including but not [498]*498limited to accurate recollection of witnesses at the time of trial.
“(7) Of the aforementioned indicia of prejudice, the consideration most potentially detrimental to defendant’s case is the third consideration specifically that the defendant’s defense could be impaired due to the passage of an inordinate amount of time.
“(8) The considerations under the third prong of the test for prejudice include a consideration of the ability of defendant to adequately prepare his case for trial given the recall of witnesses and their ability to ‘accurately recall events of the past and distant past in light of loss of memory.’ Significantly, as noted by the court in Africa supra this is not always reflected in the record because what has been forgotten can rarely be shown. (emphasis supplied)

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Commonwealth v. Kimbrough
872 A.2d 1244 (Superior Court of Pennsylvania, 2005)
Commonwealth v. Pounds
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Commonwealth v. Starr
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Commonwealth v. Africa
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Bluebook (online)
7 Pa. D. & C.5th 493, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-kohler-pactcompldelawa-2009.