filed: October 2, 1986.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
CHARLES JOSEPH OELER, APPELLEE
Appeal from the Order of the Court of Common Pleas, Allegheny County, Criminal Division, at No. CC 8504193.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Commonwealth, appellant.
Gary G. Gentile, Pittsburgh, for appellee.
Brosky, Montgomery and Hester, JJ.
[ 357 Pa. Super. Page 282]
This appeal is from the order granting appellee's petition for writ of habeas corpus and dismissing the case against appellee.*fn1
Appellant, the Commonwealth, contends that: (1) the court below erred when it ruled that the complaint against appellee was not timely filed; and (2) even if the complaint was not timely filed, the complaint should not have been dismissed because appellee did not show any prejudice to his rights resulting from the untimely filing.
We agree with the Commonwealth's first contention and, accordingly, reverse the order of the court below and reinstate the complaint against appellee.
On February 23, 1985, appellee was arrested for driving under the influence. Appellant was then released from custody. A complaint was filed against appellee on February
[ 357 Pa. Super. Page 28328]
, 1985. On April 12, 1985, a preliminary hearing was held before a district magistrate. At that time, appellee moved to dismiss the complaint on the basis that it was untimely filed under Pa.R.Crim.P. 130(d). The district justice denied the motion and held appellee for court. After the Commonwealth charged appellee by information with the offense of driving under the influence, he filed, on May 2, 1985, a motion for a writ of habeas corpus. A hearing was held on May 8, 1985, at which time the court below granted appellee's motion on the basis that the complaint had been untimely filed under Pa.R.Crim.P. 130(d). This appeal timely followed.
The Commonwealth first argues that the court below erred when held that the complaint had been untimely filed. Pa.R.Crim.P. 130 provides in relevant part that:
Rule 130. Procedure in Court Cases Initiated by Arrest Without Warrant
(b) When a defendant has been arrested without a warrant for driving under the influence of alcohol or controlled substances, the arresting officer may, when he deems it appropriate, promptly release the defendant from custody rather than taking him before the issuing authority.
(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant within five (5) days of the defendant's release. Thereafter, a summons, not a warrant of arrest, shall be issued and the case shall proceed as provided in Rule 110.
Since, in the instant case, the arresting officer followed the procedure of Rule 130(b) on February 23, 1985, Rule 130(d) required that a complaint be filed within five days of that date. The lower court in holding that the complaint was untimely filed stated the following:
[ 357 Pa. Super. Page 284]
For the purpose of Rule 130 the Commonwealth had five full days to issue the complaint and summons. Those days were February 23, 24, 25, 26 and 27.
The complaint and summons were not issued until February 28, the sixth day. For this reason this Court had no choice but to grant the relief requested by Defendant.
The Commonwealth, however, contends that Rule 130(d) should be construed according to 1 Pa.C.S. § 1908, and that if it is so construed, the filing of the complaint on February 28 did not violate Rule 130(d). We agree with the Commonwealth on both points.
1 Pa.C.S. § 1908 provides the following:
Computation of time
When any period of time is referred to in any statute, such period in all cases, except as otherwise provided in section 1909 of this title (relating to publication for successive weeks) and section 1910 of this title (relating to computation of months) shall be so computed as to exclude the first and include the last day of such period. Whenever the last day of any such period shall fall on Saturday or Sunday, or on any day made a legal holiday by the laws of this Commonwealth or of the United States, such day shall be omitted from the computation.
The Rules of Criminal Procedure are to be construed "as nearly as may be in consonance with the rules of statutory construction," Pa.R.Crim.P. 2. Moreover, both this Court and our state Supreme Court have construed time periods for a speedy trial under Pa.R.Crim.P. 1100 in accordance with § 1908. See Commonwealth v. Wade, 457 Pa. 399, 380 A.2d 782 (1977); Commonwealth v. Walls, 303 Pa. Super. 284, 449 A.2d 690 (1982).*fn2 Thus, we have no
[ 357 Pa. Super. Page 285]
hesitation whatsoever in agreeing with the Commonwealth that the time period of Rule 130(d) should be construed according to § 1908.
In the instant case, such a construction requires that the five day time period of Rule 130(d) be computed so as to exclude the day of appellee's release, February 23, 1985. Thus, a timely filing could have been made on any one of the five succeeding days, February 24 through February 28. Since the complaint was filed on February 28, we agree with the Commonwealth that it was filed within the five day period specified by Rule 130(d).*fn3
[ 357 Pa. Super. Page 286]
We must, therefore, conclude that the court below erred in granting appellee's petition for writ of habeas corpus and dismissing the case against him. Accordingly, we reverse the order of the court below and reinstate the complaint against appellee. Jurisdiction relinquished.