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COMMONWEALTH PENNSYLVANIA v. CHARLES S. TALARIGO (09/18/87)

filed: September 18, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT
v.
CHARLES S. TALARIGO



Appeal from the Order of the Court of Common Pleas of Centre County, Criminal Division, at No. C.A., 1986-225

COUNSEL

Ross H. Cooper, Assistant District Attorney, Bellefonte, for Com., appellant.

Deborah Lux, Assistant Public Defender, Bellefonte, for appellee.

Cirillo, President Judge, and Brosky, Wieand, Olszewski, Del Sole, Montemuro, Tamilia, Popovich and Johnson, JJ. Olszewski, J., concurs with opinion, which was joined by Cirillo, President Judge, and Johnson, J. Tamilia, J., dissents with opinion.

Author: Brosky

[ 366 Pa. Super. Page 232]

This is an appeal from the Order of the trial court dismissing the prosecution of this case of driving under the influence.

Appellant presents two issues for our consideration: (1) whether the criminal complaint issued against appellee was filed within the five (5) day limitations of Rule 130(d); and (2) whether the language of Rule 130(d) that a complaint "shall" be filed within five (5) days of release is directory

[ 366 Pa. Super. Page 233]

    and not mandatory, and whether a motion to dismiss based upon a filing on the sixth (6th) day, should be granted absent a showing of specific prejudice resulting from the delay as required by Rule 150.

The trial court dismissed the prosecution of this case; however, we respectfully reverse the trial court's order.

Appellee was arrested and released on January 28, 1986, for driving under the influence of alcohol. On Monday, February 3, 1986, a criminal complaint was filed and a summons issued by the District Magistrate. A preliminary hearing was held on March 19, 1986, and, even though appellee moved to dismiss his charges, he was bound over to the Court of Common Pleas of Centre County. Appellee filed a timely pre-trial Omnibus motion for dismissal of his case due to an alleged violation of Pa.R.Crim.P. 130(d). A hearing on the motion was held on May 29, 1986, and, on June 9, 1986, an order was entered dismissing the case due to a violation of Pa.R.Crim.P. 130(d). Appellant Commonwealth filed a timely notice of appeal in this Court from the Order of June 9, 1986.

Turning first, to the second contention raised by appellant, (that being the need for a showing of prejudice when a complaint was filed on the sixth day following release), we find that this exact issue has been recently decided in Commonwealth v. Schimelfenig, et al., 361 Pa. Super. 325, 522 A.2d 605 (1987). Like the defendants in Schimelfenig, appellee here was released pursuant to Pa.R.Crim.P. 130(b), which states:

(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.

Pa.R.Crim.P. 130(d) provides the procedure to be followed pursuant to such a release:

(d) When a defendant is released pursuant to paragraphs (b) or (c), a complaint shall be filed against the defendant

[ 366 Pa. Super. Page 234]

    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.

Because the instant complaint was not issued until February 3rd, following appellee's January 28th release, the trial court dismissed the prosecution of the matter. Appellant argues that Rule 130(d) must be read in conjunction with Pa.R.Crim.P. 150 which provides:

Rule 150. Defects in Form, Content, or Procedure -- Court Cases

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.

Previous case law had held that dismissal of charges was mandated for a violation of the five day limitation of Rule 130(d), and that Rule 150 did not apply to Rule 130(d) because, according to the legislative history, the five-day rule was specifically added to eliminate the guesswork of what constituted "unnecessary delay." See Commonwealth v. Press, 342 Pa. Super. 507, 493 A.2d 705 (1985), allowance of appeal granted, 509 Pa. 534, 505 A.2d 251 (1986) and Commonwealth v. Revtai, 343 Pa. Super. 149, 494 A.2d 399 (1985), allowance of appeal granted, 509 Pa. 496, 503 A.2d 932 (1986). Both Press and Revtai, however, have been specifically overruled by an en banc panel of our court in Schimelfenig, sujpra. The Schimelfenig court based its decision upon several factors. Without reiterating the entire opinion verbatim, it is, nevertheless, useful to highlight that court's reasoning. With regard to the use of the word "shall" in Rule 130(d) as requiring ...


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