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COMMONWEALTH v. MUMICH (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
MUMICH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Blair County, No. 1241 of 1974, in case of Commonwealth of Pennsylvania v. Andrew J. Mumich.

COUNSEL

Thomas M. Reese, for appellant.

Edward S. Newlin, Assistant District Attorney, and Amos C. Davis, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Dissenting Opinion by Spaeth, J.

Author: Jacobs

[ 239 Pa. Super. Page 210]

Appellant, Andrew Mumich, was charged with fornication and bastardy under the old Penal Code.*fn1 He was found guilty following a non-jury trial and sentenced to pay the costs of prosecution as well as $15.00 a week commencing with the birth of the child.

[ 239 Pa. Super. Page 211]

The only issue raised on appeal is whether appellant was denied his right to a prompt trial under Pa.R.Crim.P. 1100. The first criminal complaint in this case was executed by the prosecutrix on October 9, 1973. At appellant's preliminary arraignment, however, on May 18, 1974, Magistrate Denver K. Ake dismissed the complaint and discharged appellant on the basis that the signature of the prosecutrix-affiant did not appear on the defendant's copy of the complaint. Within a month, on June 20, 1974, a second complaint was filed by the prosecutrix before a Magistrate Miller. Prior to trial a motion was filed by appellant to dismiss the indictment because trial had not commenced within 270 days from the filing of the first complaint on October 9, 1973. The court below conducted a hearing and found no violation of Rule 1100 because it computed the 270 days to run from the filing of the new complaint on June 20, 1974. Trial was held on January 30, 1975, well within the 270-day limit from the date of the new complaint.

The Rules of Criminal Procedure provide that at the preliminary arraignment the magistrate shall deliver a copy of the complaint to the defendant. Pa.R.Crim.P. 140. Yet Rule 132 dictates that the complaint shall contain the signature of the affiant. Rule 150 sets forth the procedure to be followed when defects are found in a complaint.

"Rule 150. Defects in Complaint, Citations, Summons or Warrant

(a) Informal Defects:

No person arrested under a warrant or appearing in response to a summons or citation shall be discharged from custody nor shall any case be dismissed because of any informal defects in the complaint, citation, summons or warrant, but the complaint, citation, summons or ...


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