Appeal No. 297 Harrisburg 1986 from the order of the Court of Common Pleas of Dauphin County, Criminal Division, No. 159 M.D. 1986; Schaffner, Judge.
David E. Hershey, Assistant District Attorney, Harrisburg, for Com., appellant.
James P. Sheppard, Harrisburg, for appellee.
Cirillo,*fn* President Judge, and Rowley and Tamilia, JJ. Tamilia, J., files a dissenting opinion.
[ 366 Pa. Super. Page 409]
The order is reversed and the case is remanded to the trial court for further proceedings consistent with Commonwealth v. Schimelfenig, 361 Pa. Super. 325, 522 A.2d 605 (1987).
TAMILIA, Judge, dissenting:
I respectfully dissent to the majority's decision to reverse the Order of the trial court and remand for proceedings consistent with Commonwealth v. Schimelfenig, 361 Pa. Super. 325, 522 A.2d 605 (1987). Not only do I disagree with the result reached in Schimelfenig, I am not convinced the factual scenario at issue is directly analogous to Schimelfenig
[ 366 Pa. Super. Page 410]
such that it must be followed in this particular situation.
This is a Commonwealth appeal from the Order of the trial court denying the Commonwealth's motion for a rule to show cause why a criminal complaint should not be refiled against appellee, Michael Cook.
Appellee was arrested on December 29, 1985 for driving under the influence of alcohol or a controlled substance and was released the same day. A criminal complaint was filed on December 30, 1985, and a summons was issued directing appellee to appear for a February 6, 1986 preliminary hearing. On February 6, 1986 at 11:00 a.m., appellee and his counsel appeared before District Justice Magaro; however, representatives from the police department and the district attorney's office failed to appear. Accordingly, District Justice Magaro dismissed the criminal complaint against appellee. On February 12, 1986, the complaining officer appeared before District Justice Magaro and requested permission to refile the complaint. This request was denied.
The Commonwealth now contends the trial court erred in denying their petition to refile the criminal charges. I cannot agree. This issue has been squarely addressed by our Court in Commonwealth v. Hatcher, 345 Pa. Super. 481, 484, 498 A.2d 925, 927 (1985), wherein we held "the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the ...