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COMMONWEALTH PENNSYLVANIA v. ROBERT L. HUMMEL (02/23/87)

submitted: February 23, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ROBERT L. HUMMEL, APPELLEE



Appeal from the Order entered October 6, 1986, in the Court of Common Pleas of Dauphin County, Criminal Division, at No. 1413 C.D. 1986.

COUNSEL

Mark E. Morrison, Assistant District Attorney, Harrisburg, for Com., appellant.

Timothy J. O'Connell, Harrisburg, for appellant.

Del Sole, Montemuro and Roberts, JJ.

Author: Del Sole

[ 363 Pa. Super. Page 377]

On May 14, 1986, a van driven by Appellee was stopped by a Pennsylvania State Police trooper. A field sobriety test was conducted, following which, Appellee was arrested for driving under the influence of alcohol and/or a controlled substance. 75 Pa.C.S. ยง 3731(a)(1)-(4). In accordance with Pa.R.Crim.P., Rule 130(b), the arresting officer released Appellee instead of taking him before the District Justice. See Pa.R.Crim.P., Rule 130. On the following morning, a completed complaint was delivered to the District Justice's Office. However, the complaint was not certified and issued process by that office until May 21, 1986, seven days subsequent to Appellee's arrest and release. This was in direct contravention of subsection (d) of Rule 130, which provides:

(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.

[ 363 Pa. Super. Page 378]

Appellee was subsequently arraigned and given a trial date. A motion to quash was filed on Appellee's behalf, which was granted by the trial court after a brief hearing on the matter. This timely appeal follows.*fn1

The Commonwealth, Appellant in the case at bar, avers that it was unduly prejudicial to the Commonwealth's interests for the District Attorney's Office to be held accountable for inadvertent judicial delay by the minor judiciary. (Appellant's Brief, 4). In support of this position, Appellant cites Commonwealth v. Monosky, 511 Pa. 148, 511 A.2d 1346, 1348 (1986) which provides that "[w]hen the district attorney has timely filed an application for an extension [of time under Rule 1100] and was unaware of inadvertent delay by the minor judiciary in processing the complaint, such judicial delay may justify granting the application." Appellant contends that this rationale is equally applicable to Rule 130 inasmuch as it is analogous to the instant case.

Appellee successfully argued before the trial court that Commonwealth v. Revtai, 343 Pa. Super. 149, 494 A.2d 399 (1985), and its progeny, are controlling. In Revtai, we found that "Rule 130(d) is not merely directory, but mandatory in its plain meaning that a complaint must be filed within five days of arrest and release." Id. at 343 Pa. Superior Ct. at 152, 494 A.2d at 401. Likewise, the Revtai court declined to apply the remedial provisions of Rule 150 in interpreting Rule 130(d). Rule 150 states:

[a] defendant shall not be charged nor shall a case be dismissed because a defect in form or content of a complaint, summons, or warrant, or a defect in the procedures of this Chapter, unless the defendant raises the defect before the conclusion of the preliminary ...


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