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COMMONWEALTH PENNSYLVANIA v. WILLIAM R. TAIT (12/29/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: December 29, 1987.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WILLIAM R. TAIT, APPELLEE

Appeal from the Order July 18, 1986, in the Court of Common Pleas of Lycoming County, Criminal No. 86-10, 243.

COUNSEL

Kenneth A. Osokow, Assistant District Attorney, Williamsport, for Com., appellant.

Scott Waters, Williamsport, for appellee.

Wieand, Olszewski and Tamilia, JJ.

Author: Olszewski

[ 369 Pa. Super. Page 316]

In this appeal, the Commonwealth challenges an order dismissing a charge of driving under the influence of alcohol. We reverse the order and reinstate the charge.

On November 3, 1985, appellee William Tait was arrested on a charge of driving under the influence. Pursuant to Pa.R.Crim.P. 130(b),*fn1 he was promptly released from custody, and on November 7, 1985, a complaint was timely filed in accordance with Pa.R.Crim.P. 130(d). A preliminary hearing was held on February 10, 1986. Because the Commonwealth was unable to locate a witness, the charge was dismissed.

A second complaint was filed on February 26, 1986, and a summons was issued scheduling a second preliminary hearing. Appellee filed a motion to dismiss the refiled charge, and, following a hearing on that motion, the complaint was dismissed as having been filed in violation of the rule established in Commonwealth v. Hatcher, 345 Pa. Super. 481,

[ 369 Pa. Super. Page 317498]

A.2d 925 (1985). Specifically, the court found that the dismissal of the first complaint was warranted because the Commonwealth had failed to establish a prima facie case at the preliminary hearing. Relying upon Hatcher, the Court concluded that the Commonwealth was barred from refiling the charge against appellee. The Commonwealth now questions the propriety of the order dismissing the second complaint.

Our disposition of this matter is controlled to a great extent by the recent decision of our Supreme Court in Commonwealth v. Revtai, 516 Pa. 53, 532 A.2d 1 (1987), a decision which overruled Hatcher. Upon an examination of the circumstances at issue in Hatcher, our Supreme Court made clear that the Commonwealth is not barred from rearresting a defendant following a dismissal at the preliminary hearing, provided the statute of limitations has not expired. Revtai, 516 Pa. at 74, 532 A.2d at 11, citing, Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). Importantly, it was the belief of the Revtai Court that where an original charge of driving under the influence was dismissed, a defendant "stands in the same position as all other criminal defendants who are subjected to rearrest after a favorable preliminary hearing determination." Id., citing, Commonwealth v. Genovese, 493 Pa. 65, 425 A.2d 367 (1981). As for the applicability of Rule 130 to a rearrest situation, the Court stated: "[w]here the arrest is for a crime which falls under Rule 130, the Rule will apply from the date of the rearrest." Id. Noting that the complaint against Mr. Hatcher had been filed the same day as his rearrest, the Court found no violation of Rule 130(d). Id.

Under the rule of Revtai, the Commonwealth acted properly in refiling the charge against appellee. Instantly, the record indicates that the first complaint against appellee was dismissed at the preliminary hearing because the Commonwealth was unable to locate a witness and, thus, had failed to establish a prima facie case. Under such circumstances, the first complaint was a nullity and appellee was

[ 369 Pa. Super. Page 318]

    subject to rearrest. See Genovese, 493 Pa. at 70, 425 A.2d at 370. See also, Revtai, 516 Pa. 53, 532 A.2d at 11.

We believe, however, that Revtai does not govern our resolution of the question regarding the application of Rule 130. As we noted above, the Revtai Court found no Rule 130 violation because the second complaint was filed the same day that Mr. Hatcher was rearrested. According to the record before us, the proceedings against appellee were initiated when the second complaint was filed;*fn2 thereafter, appellee was "rearrested." Given that this case proceeded on a complaint, not upon an arrest and the subsequent filing of a complaint, we conclude that Rule 130 is inapplicable to the present case. Consequently, we need not concern ourselves with the five day limitation of Rule 130(d).

Order reversed. The complaint is reinstated and the case is remanded for trial. Jurisdiction is relinquished.

Disposition

Order reversed. The complaint is reinstated and the case is remanded for trial. Jurisdiction is relinquished.


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