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COMMONWEALTH PENNSYLVANIA v. CATHERYN LEE PRESS (01/21/85)

submitted: January 21, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
CATHERYN LEE PRESS



No. 00134 Hsbg., 1984, Appeal from the Order Netered January 24, 1984 in the Court of Common Pleas of Centre County, Criminal Division, at No. C.A.1983 - 804.

COUNSEL

Ray F. Gricar, Assistant District Attorney, Bellefonte, for Commonwealth, appellant.

Edward S. Blanarik, Jr., Assistant Public Defender, Ambridge, for appellee.

Popovich, Watkins and Lipez, JJ. Popovich, J., dissents.

Author: Watkins

[ 342 Pa. Super. Page 509]

This is an appeal from an order of the Court of Common Pleas of Centre County dismissing the charges against the defendant-appellee, Catheryn Lee Press. On October 7, 1983, the appellee Catheryn Lee Press was arrested and charged with driving under the influence of alcohol or a controlled substance and a summary violation of the Motor Vehicle Code. After routine processing, appellee was released from custody pursuant to Pa.R.Crim.Pro. 130(b). On October 20, 1983, the arresting officer filed a criminal complaint and the district justice issued a summons charging appellee with driving while under the influence and a summary motor vehicle violation. At the preliminary hearing, appellee moved to dismiss the charges, citing a violation of Pa.R.Crim.Pro. 130(d). The motion was denied and after hearing, appellee was ordered held for court.

After entering a plea of "not guilty", appellee filed an omnibus pre-trial motion which contained, inter alia, a motion to dismiss the charges with prejudice due to the violation of Pa.R.Crim.Pro. 130(d). After hearing on the motion, the Honorable David E. Grine granted the motion and dismissed the charges. The lower court affirmed its prior ruling after rehearing and argument, and the Commonwealth has appealed to this Court.

The Commonwealth raises the following issues on appeal:

1. Is the word "shall" as used in Pa.R.Crim.Pro. 130(d) directory rather than mandatory?

2. Should Rule 130(d) be read in conjunction with Rule 150?

3. Must prejudice be shown before a violation of Rule 130(d) results in a dismissal of the charges?

As to the first issue raised by the Commonwealth, Pa.R.Crim.Pro. 130 provides in ...


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