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COMMONWEALTH PENNSYLVANIA v. ELMER JONNET (04/13/79)

decided: April 13, 1979.

COMMONWEALTH OF PENNSYLVANIA
v.
ELMER JONNET, JR., APPELLANT



No. 749 April Term 1978, Appeal from Order of Dec. 16, 1977, and March 3, 1978 of the Court of Common Pleas of Indiana County, Pa., Criminal Division at No. 353 Criminal Term 1977.

COUNSEL

Ira R. Mazer, Monroeville, for appellant.

Van der Voort, Spaeth and Montgomery, JJ.

Author: Spaeth

[ 265 Pa. Super. Page 316]

This is an appeal from an order affirming appellant's summary conviction of a violation of the Motor Vehicle Code, Act of April 29, 1959, P.L. 58, § 1008(c), 75 P.S. § 1008(c),*fn1 which forbids a driver to pass another vehicle at a highway intersection.

On November 16, 1976, appellant was issued a traffic citation for passing a vehicle at an intersection. The police officer mistakenly wrote on the citation that appellant had violated § 1008(b), which pertains to improper passing on hills. The next day, appellant pleaded not guilty and posted bond in person before the magistrate. On November 22, the officer filed an amended citation, charging a violation of § 1008(c). A copy of the amended citation was mailed to appellant. The magistrate without appellant's knowledge pleaded him not guilty to the amended citation and transferred his bond to it. On November 29, a notice was mailed to appellant setting December 7 as the date for his hearing; the notice included a typed notation saying, "Citation B72856 which you brought into the office was voided and a delayed arrest was issued you on November 20, 1976, Cit # B72859."

On December 6, appellant went before the magistrate and challenged the validity of the hearing as not being held between three and ten days after his appearance on November 17. Pa.R.Crim.P. 55. He did not appear at the December

[ 265 Pa. Super. Page 3177]

hearing. It was rescheduled to December 17. At the time appellant was scheduled for surgery. The hearing was ultimately held on August 22, 1977. Appellant did not appear and was found guilty in absentia.

Appellant argues that because of the substantive error in the first citation the charges against him should have been dismissed. Pa.R.Crim.P. 150(b) allows amendment of a citation even where a substantive defect exists:

(b) Substantive Defects:

If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.

Furthermore, Pa.R.Crim.P. 51(A)(1)(b) recognizes certain situations in which a citation -- which by virtue of Rule 150(b) includes an amended citation -- may be filed with an issuing authority rather than delivered ...


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