No. 2210 Philadelphia, 1981, Appeal from Order of the Court of Common Pleas, Criminal Division, of Montgomery County, No. 393-81.
David M. McGlaughlin, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Theodore Q. Thompson, Ambler, for appellee.
Wickersham, Brosky and Wieand, JJ.
[ 307 Pa. Super. Page 52]
In this appeal by the Commonwealth, it is contended that the trial court erred when, in response to an omnibus pre-trial motion, it quashed informations charging Ronald Meoli with disorderly conduct,*fn1 simple assault*fn2 and resisting arrest.*fn3 We agree and reverse.
After an appeal had been filed, the trial judge prepared and filed a memorandum opinion in accordance with Pa.R.A.P. 1925(a). In that opinion he commendably conceded that the information charging simple assault had been quashed erroneously. He explained the quashing of the resisting arrest charge on grounds that Meoli had not committed an offense in the presence of the arresting officer and that the Commonwealth, therefore, could not prove the lawful arrest which is an essential element of the crime of resisting arrest. The information charging disorderly conduct was quashed because, in the opinion of the trial judge, Meoli had not been guilty of that offense.
The trial court's order was an inappropriate response to appellant's motion to quash. A motion to quash may be used to raise defects apparent on the face of the information or other defects that would prohibit prosecution.
[ 307 Pa. Super. Page 532]
Wharton's Criminal Procedure § 348 (12th ed. Torchia 1975). See also: Commonwealth v. Roundtree, 469 Pa. 241, 247 n. 3, 364 A.2d 1359, 1362 n. 3 (1976) (proper procedure for objecting to length of delay in being brought to trial is a motion to quash); Commonwealth v. Fiume, 278 Pa. Super. 75, 419 A.2d 1364 (1980) (indictment properly quashed where it charged a crime beyond the statute of limitations and there were no facts to bring it within exceptions to statute); Commonwealth v. Costigan, 272 Pa. Super. 520, 524 n. 4, 416 A.2d 1018, 1020 n. 4 (1979) (length of delay); Commonwealth v. Creamer, 236 Pa. Super. 168, 173, 345 A.2d 212, 214-15 (1975) (indictment properly quashed where no act or failure to act charged in the indictment occurred in indicting county). A motion to quash an information is neither a guilt determining procedure nor a pre-trial means for determining the sufficiency of the Commonwealth's evidence. See and compare: Commonwealth v. Levinson, 480 Pa. 273, 289, 389 A.2d 1062, 1069 (1978); Commonwealth v. Webster, 462 Pa. 125, 131-32, 337 A.2d 914, 917, cert. denied, 423 U.S. 898, 96 S.Ct. 201, 46 L.Ed.2d 131 (1975); Commonwealth v. Coyle, 415 Pa. 379, 396, 203 A.2d 782, 791 (1964). The inadequacy, incompetency, or even illegality of the Commonwealth's evidence does not constitute grounds for quashing an information. See: United States v. Calandra, 414 U.S. 338, 344-45, 94 S.Ct. 613, 618, 38 L.Ed.2d 561, 569 (1974); Commonwealth v. Webster, supra.
In the instant case, the order quashing the informations was premature. The court had not heard the entire Commonwealth case against Meoli. It had heard only one witness, a policeman. No testimony had been received from Meoli's wife, the neighbor who called police because of Meoli's conduct toward his wife, or other policemen who were present on the scene. Until these witnesses had been heard, the court could not possibly make a determination that the Commonwealth would be unable to establish a prima facie case against appellee.
Appellee argues that the trial court's order should be affirmed because his arrest had ...