Appeal from the Judgment of Sentence of February 12, 1986, in the Court of Common Pleas of Adams County, Criminal Division, at No. CC-247-85.
Samuel K. Gates, York, for appellant.
Gary E. Hartman, District Attorney, Gettysburg, for Com., appellee.
Watkins, Hoffman and Hester, JJ.
[ 358 Pa. Super. Page 255]
This is an appeal from the judgment of sentence entered upon appellant's conviction of driving under the influence ("DUI") following a jury trial. Appellant argues that the refiling of charges, after the initial charges were dismissed at his first preliminary hearing, violated the holding of Commonwealth v. Hatcher, 345 Pa. Super. 481, 498 A.2d 925 (1985), and requires dismissal of the charges against him. We agree that there might have been a violation of Hatcher, and remand the case for further proceedings due to the fact that the record is incomplete.
On February 20, 1985, appellant was arrested by McSherrystown Borough police and charged with DUI. The initial complaint was filed on February 21, 1985. A preliminary hearing was held on March 18, 1985, and the charges were dismissed. The DUI charges were refiled on March 20, 1985. At the second preliminary hearing, the charges were waived into court. At appellant's formal arraignment, he pleaded not guilty and requested a jury trial.
The case was called for trial, a jury was selected and appellant orally moved to have his charges dismissed pursuant to Pa.R.Crim.P. 130. The motion was denied and trial was held on August 23, 1985. The jury returned a verdict of guilty. Post-trial motions were filed and denied. On February 12, 1986, appellant was sentenced.
Appellant argues that the procedure followed in his case violates the holding in Commonwealth v. Hatcher, supra. Hatcher was arrested without a warrant for DUI, released pursuant to Pa.R.Crim.P. 130(b), and a complaint was issued within five days pursuant to Rule 130(d). At Hatcher's preliminary hearing, the magistrate dismissed the charges due to the Commonwealth's failure to establish a prima facie case. The arresting officer failed to identify Hatcher
[ 358 Pa. Super. Page 256]
as the operator of the vehicle. Eight days later, the Commonwealth filed a second complaint upon which Hatcher was convicted of DUI. On appeal, we held that "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) . . . pertaining to arrest without warrant." Hatcher, supra, 345 Pa. Superior Ct. at 484, 498 A.2d at 927. Appellant argues that this holding controls his case.
The trial court and the Commonwealth correctly note the general rule that, barring misconduct by the Commonwealth, dismissal of charges at a preliminary hearing does not end the case but may be followed by the filing of a second complaint based on the same criminal episode. Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981); Commonwealth v. Cartagena, 482 Pa. 6, 393 A.2d 350 (1978); Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). Applying this rule, the Commonwealth would distinguish Hatcher, supra, on the basis that Hatcher's second complaint issued more than five days after the first complaint was dismissed, whereas appellant's second complaint issued within five days of dismissal of the first complaint. We cannot accept such a reading of Hatcher.
In the first place, Rule 130(d) requires that a complaint be filed within five days of release pursuant to Rule 130(b). ...