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COMMONWEALTH PENNSYLVANIA v. ROBERT MCDERMOTT (09/19/80)

filed: September 19, 1980.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT MCDERMOTT



No. 762 October Term, 1979, Appeal from Order in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, No. 78-10-1844/1846.

COUNSEL

Neil Kitrosser, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

George E. Goldstein, Philadelphia, for appellee.

Hester, Wickersham and Lipez, JJ.

Author: Hester

[ 280 Pa. Super. Page 536]

This is a Commonwealth appeal from an order of the Court of Common Pleas of Philadelphia County granting appellee's motion to dismiss pursuant to Pa.R.Cr.P. 1100. The procedural history and facts relevant to the issue on appeal are as follows:

Appellee was charged with attempted rape, indecent assault, aggravated assault and simple assault. The alleged crimes took place on February 11, 1978, late in the evening. The investigating officer obtained a warrant for appellee's arrest on February 13, 1978. The officer attempted to execute the warrant from that date until the end of March, 1978 by visiting areas known to be frequented by the appellee. Prior to his entering the hospital, the officer informed the 25th and 26th police districts of the warrant and distributed several photographs of appellee obtained from the police photo lab. The warrant was filed in the East Detective Division, and the information therein was placed in the N.C.I.C. computer on March 22, 1978.

Another officer ascertained the appellee's address to be 3234 Hartfield Street, but upon investigation, appellee's wife informed him that she did not know her husband's whereabouts. This officer also investigated several of appellee's known hangouts, and checked with his employer, Father McGowan. None of these attempts proved successful in locating appellee. Finally, on October 21, 1978, an officer observed appellee sitting on his front porch and arrested him.

[ 280 Pa. Super. Page 537]

However, during the time in question, appellee was arrested twice by the same detective division which had secured the warrant. First, on June 14, 1978, Detective Sippel of East Detective Division was investigating a spouse abuse case at Episcopal Hospital involving appellee's spouse. Appellee was present in an intoxicated and drugged state. Sippel questioned him, then transported him to East Detective Division. Sippel placed appellee's name into the N.C.I.C. police computer, which indicated no outstanding warrants for him. Appellee was then returned to the hospital due to his condition, where he was later discharged.

On July 24, 1979, Officer Hawthorne was ordered to proceed to the Hartfield Street address to arrest appellee due to the fact that he had allegedly given refuge to escaped prisoners. The information had been received from the State Police. Officer Hawthorne ran a computer check which did not disclose an outstanding warrant for appellee. Appellee was later released.

On January 25, 1979, appellee filed a motion to dismiss pursuant to Pa.R.Crim.P. 1100. After hearing testimony on January 30, February 9 and March 13, 1979, the trial court granted appellee's motion finding a lack of due diligence on the part of the police in locating appellee.

Appellant contends the trial court erred in finding a lack of due diligence because of the ...


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