Appeal from the Order of the Court of Common Pleas, Criminal Division, of Chester County at No. 1894/84.
Stuart B. Suss, Assistant District Attorney, West Chester, for Com., appellant.
Jeremiah F. Kane, Assistant Public Defender, Yardley, for appellee.
Brosky, Beck and Popovich, JJ.
[ 362 Pa. Super. Page 147]
This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Chester County dismissing a complaint issued against the appellee, Gloria Lewis, as violative of Pa.R.Crim.P. 130(d). We reverse.
The facts are not in dispute and reveal that the appellee was charged with driving while under the influence of alcohol (in violation of 75 Pa.C.S. § 3731(a)(1), (4)) on August
[ 362 Pa. Super. Page 1481]
, 1984. However, she was not held in custody, but was, instead, released as permitted by Rule 130(b). A complaint was filed on August 10, 1984, followed by a preliminary hearing on September 12, 1984, resulting in the appellee being held for court.
Thereafter, on January 29, 1985, the appellee was admitted to the Accelerated Rehabilitative Disposition program. However, on April 1, 1986, the appellee was removed therefrom for violating its requirements, i.e., she was convicted in June of 1985 in Delaware County of driving while intoxicated -- a thirty-day prison sentence, to be served on weekends, was imposed.
On May 9, 1986, counsel for the appellee submitted an Application to Dismiss Criminal Complaint. Therein, counsel alleged that the arresting officer's failure to file the 1984 complaint within five (5) days of the appellee's release required a dismissal of the charges as violative of Rule 130(d), which reads, in pertinent part, that "[w]hen a defendant is released pursuant to paragraph (b) . . ., a complaint shall be filed against the defendant within five (5) days of the defendant's release."
After a hearing was held on the Application, the lower court dismissed the complaint for the Commonwealth's failure to establish due diligence in the prosecution of the appellee, i.e., the filing of the complaint five (5) days after the mandatory period had expired was held to be in contravention of Rule 130(d). As for the sole officer on the police force, who happened to be employed just part-time, recounting that his full-time job and the back log of other police paperwork hampered his efforts to issue the complaint sooner than he did, this was not considered by the lower court to be evidence of due diligence under Commonwealth v. Hatcher, 345 Pa. Super. 481, 498 A.2d 925 (1985). This timely appeal followed.
In light of our disposition in the case at bar, we find it necessary to address only one of ...