Appeal from the Judgment of Sentence July 23, 1986 in the Court of Common Pleas of Delaware County, Criminal, No. 303 of 1985.
Carmen P. Belefonte, Media, for appellant.
Joseph J. Mittleman, Assistant District Attorney, Media, for Com.
Cirillo, President Judge, and Rowley and Hoffman, JJ. Rowley, J., files a concurring and dissenting statement.
[ 365 Pa. Super. Page 108]
This is an appeal from a judgment of sentence, following a non-jury trial, for driving under the influence of alcohol and related offenses. We reverse and remand.
The issues presented for our review are: (1) whether the criminal complaint should have been dismissed due to its defects; (2) whether certain evidence was properly admitted at trial; and (3) whether the verdict was supported by sufficient evidence.
A patrolman stopped appellant Bruder's car after the officer saw him pass a red light. The patrolman also witnessed what he described as Bruder's erratic driving behavior. When the policeman approached Bruder, he noticed indicia of intoxication. The patrolman testified that Bruder was unable to walk in a straight line, heel to toe, or recite the complete alphabet. Appellant was then arrested for driving under the influence of alcohol, and informed of his rights as required by Miranda v. Arizona, 384 U.S. 436, 467-73, 86 S.Ct. 1602, 1624-27, 16 L.Ed.2d 694 (1966).
[ 365 Pa. Super. Page 109]
Appellant argues that the complaint filed against him was defective and, therefore, should have been dismissed. More specifically, appellant asserts that the complaint violated Pennsylvania Rules of Criminal Procedure 132 and 134.
The alleged violation by the Commonwealth of Rule 132 was its failure to include a verification with the complaint. Rule 132(9) requires that every complaint include a "verification by the affiant that the facts set forth in the complaint are true and correct to the affiant's personal knowledge or information and belief, and that any false statements therein are made subject to the penalties . . . relating to unsworn falsification to authorities . . . ."
In the case at bar, the arresting officer, in filing the complaint, used an old form which was designed to conform to an older version of Rule 132. The complaint did not conform to the current version of Rule 132 because it did not contain the required clause that false statements were subject to the penalties of unsworn falsification.
The trial court found that based on Pa.R.Crim.P. 150, the defect in the complaint did not warrant dismissal of the charges. Pa.R.Crim.P. 150 provides that a "defendant shall not be discharged nor shall a case be dismissed because of a defect in the 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 hearing and the defect is prejudicial to the rights of the defendant."
The trial court noted that the defect concerning the absence of a verification was not raised in this case until after the preliminary hearing and suppression hearing. The trial court also observed, and we agree, that the appellant was aware of the charges against him and was not prejudiced by the defect in the complaint.
We express displeasure with the failure of the police to fully comply with the requisite form of a complaint. The plain language of Rule 150, however, does not permit us to
[ 365 Pa. Super. Page 110]
discharge the complaint in this particular case because the defect was neither timely raised nor was ...