No. 412 Harrisburg, 1984, Appeal from the Judgment of Sentence of July 11, 1984 in the Court of Common Pleas of Dauphin County, Criminal Division, No. 62 CD 1984
Arthur K. Dils, Harrisburg, for appellant.
Howard P. Stewart, Assistant Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Cavanaugh, Cercone and Lipez, JJ.
[ 345 Pa. Super. Page 483]
Appellant was convicted of driving under the influence of alcohol (DUI). In this appeal from the judgment of sentence entered against appellant he raises the following issue:*fn1 whether the Commonwealth violated Pa.R.Crim.P. 130(d)*fn2 when it failed to establish a prima facie case
[ 345 Pa. Super. Page 484]
against appellant at his preliminary hearing and subsequently refiled the charges, the filing of which was beyond the five day limit of Rule 130(d).
On September 8, 1983 appellant was arrested without a warrant for driving under the influence of alcohol; appellant was released from custody. A criminal complaint was issued on September 9, 1983, after which a preliminary hearing was held on October 27, 1983. The magistrate dismissed the charges against appellant for lack of a prima facie case when the arresting officer failed to identify appellant as the operator of the vehicle that she had stopped. Subsequently, on November 4, 1983, the Commonwealth refiled D.U.I. charges, arising out of the same episode, against appellant. At the second preliminary hearing the case was held for court. On March 1, 1984 appellant filed a "Motion to Dismiss" on the grounds that his rearrest on November 4, 1983 violated the above referred to Pa.R.Crim.P. 130. The motion was denied and at a bench trial appellant was found guilty of driving under the influence and sentenced to ninety days to twelve months incarceration.
The issue in this case is one of first impression for we are asked to decide whether the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the second arrest occurs after the five day period for filing charges pursuant to Rule 130(d) Pa.R.Crim.P. pertaining to arrest without warrant. We find that it does and reverse the lower court.
[ 345 Pa. Super. Page 485]
Recent decisions of our court have held that Rule 130(d) unequivocally establishes five days from the date of a defendant's release as the time within which charges must be lodged against a defendant. The sanction for the Commonwealth's violation of the five day deadline is dismissal of the charges unless the Commonwealth can show due diligence in the face of the violation. Commonwealth v. Page 485} Revtai, 343 Pa. Super. 149, 494 A.2d 399 (1985); Commonwealth v. Press, 342 Pa. Super. 507, 493 A.2d 705 (1985). In Press and Revtai our court addressed a factual episode in which the defendant was arrested, charged with D.U.I. and released from custody. Subsequently, the Commonwealth filed a criminal complaint beyond the five day period of Rule 130 the consequences of which was the lower court's dismissal of the charges. We affirmed in those two cases. In the case at bar the fact pattern differs in that the Commonwealth timely filed D.U.I. charges against appellant in accordance with Rule 130(d), which charges were dismissed and a second charge filed beyond the five day period in violation of the rule.
It is axiomatic that an accused may be rearrested and prosecuted despite the dismissal of charges at a preliminary hearing stage so long as the charge is brought within the statutory limitation period for a particular crime. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981); Commonwealth v. McClain, 325 Pa. Super. 29, 472 A.2d 630 (1984). Rigorous compliance with time limitations was confirmed in Commonwealth v. Matthews, 286 Pa. Super. 474, 429 A.2d 37 (1981), where our court reviewed the issue of whether, in the provision of the Vehicle Code which required the Commonwealth to institute charges within fifteen days of an alleged summary offense or within fifteen days ...