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Commonwealth v. Totaro

Superior Court of Pennsylvania

December 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
STEVEN GREGORY TOTARO, Appellee

Argued July 30, 2014

Appeal from the Order of the Court of Common Pleas, York County, Criminal Division, Nos. CP-67-CR-0002278-2012 and CP-67-CR-0005613-2013. Before KENNEDY, J.

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellant.

Edward F. Spreha, Jr., Harrisburg, for appellee.

BEFORE: PANELLA, SHOGAN and FITZGERALD[*], JJ.

OPINION

Page 121

SHOGAN, J.

Appellant, the Commonwealth of Pennsylvania, appeals from the October 24, 2013 York County Court of Common Pleas order that dismissed a charge of possession with intent to deliver (" PWID" ) filed at Docket Number CP-67-CR-0005613-2013 and denied the Commonwealth's motion to consolidate that case with charges pending at Docket Number CP-67-CR-0002278-2012. We affirm.

The trial court summarized the facts and procedural history as follows:

On February 18, 2012, Trooper Albert Miles, of the Pennsylvania State Police in York, received a call about an erratic driver on State Route 83. See N.T. Pre Trial, 10/24/2013 at 28:3-5. [Pennsylvania State] Trooper [Albert] Miles stopped Appellee's vehicle and explained his reasoning for the stop. Id. at 28:7-9. Trooper Miles observed the Appellee exhibit nervous shaking bodily movements, slurred and stuttering speech, as well as, dilated pupils. Id. at 28:10-14. Based on those observations, combined with a report of erratic driving, a drug recognition expert evaluated [A]ppellee and subsequently Appellee was placed under arrest for driving under the influence of a controlled substance. Id. at 28-15-19. Upon Appellee's arrest, Trooper Miles seized 609 light blue tablets, which he then submitted to the State Police Laboratory on March 8, 2012. Id. at 29 11-15. The lab report was completed on April 12, 2012. Id. at 18:25, 19:1. The State Police Lab identified the pills as a Schedule IV drug containing diazepam, [Valium], which Appellee was not authorized to possess. Id. at 29:15:18. The matter was bound over at the District Justice level in March of 2012. Id.[1]
From this point on the procedural history followed a tortured path, to say the

Page 122

least. On July 3rd, 2012, the DUI case at docket number CP-67-CR-0002278-2012 was listed for a pre-trial conference. Id. at 31:22. This case was then listed on the trial list on the following dates, September 2, 2012; January 7, 2013: and January 13, 2013. Id. Subsequently it was scheduled for a pre-trial hearing on January 29, 2013 and later appeared on the trial list, yet again, on March 4, 2013, April 1, 2013 and April 11, 2013. Id. In April of 2013, the Commonwealth discovered the report from the State Police Laboratory which identified the pills as a Schedule IV drug, and on April 15, 2013 the Commonwealth filed a motion for leave to amend the information, in order to add a charge of Possession with intent to deliver (PWID). Id. at 31:11-19. This Court denied the Commonwealth's request to amend the charges [on April 19, 2013,] due to prejudice on the part of the Appellee.
Subsequently[, on May 14, 2013,] the Commonwealth requested to nolle pros [2] the charges under docket number CP-67-CR-0002278-2012, without prejudice, in order to re-charge the previous charges and include an additional charge of PWID. Id. at 5 3-6. This Court denied this request [on May 24, 2013,] because we felt that the Commonwealth was trying to circumvent our previous Order denying their request to amend the information.
In response to our denial of a request to nolle pros the charges in CP-67-CR-14, 0002278-2012, the Commonwealth filed a new complaint [on June 27, 2013, and information on September 9, 2013,] docketed at CP-67-CR-0005613-2013, containing the PWID charge, and then filed a motion to consolidate with docket number CP-67-CR-0002278-2012 [on October 17, 2013]. Id. at 33:20-22. This Court denied the motion to consolidate [on October 24, 2013], and in the interest of justice, this court granted [Appellee's October 2, 2013] motion to dismiss case number CP-67-CR-0005613-2013 [also on October 24, 2013]. Id. at 34:1-6. This timely appeal followed [on November 22, 2013].

Trial Court Opinion, 2/4/14, at 1-3.[3] Both the trial court and the Commonwealth complied with Pa.R.A.P. 1925.

The Commonwealth raises the identical two issues it asserted in its Rule 1925(b) ...


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