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COMMONWEALTH PENNSYLVANIA v. ALBERT SANDLY (02/22/88)

filed: February 22, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
ALBERT SANDLY



Appeal from the Order entered in the Court of Common Pleas of Lackawanna County, Criminal Division, No. 86 CR 1079.

COUNSEL

Andrew Jarbola, Assistant District Attorney, Scranton, for Comm., appellant.

Charles R. Witaconis, Assistant Public Defender, Scranton, for appellee.

Cirillo, President Judge, and Tamilia and Kelly, JJ. Kelly, J., dissents.

Author: Tamilia

[ 371 Pa. Super. Page 487]

This is an appeal from the Order granting appellee's petition for writ of habeas corpus and dismissing the criminal complaint, pursuant to Pa.R.Crim.P. 130(d).

On August 12, 1986, a complaint was issued against appellee, Albert Sandly, charging him with a violation of

[ 371 Pa. Super. Page 488]

    driving under the influence of alcohol (75 Pa.C.S.A. § 3731) arising out of an incident on the night of August 8, 1986.

A preliminary hearing was scheduled for September 9, 1986, at which time the district justice dismissed the charge due to the prosecuting officer's failure to appear for the hearing. Appellee was then rearrested on the same charge pursuant to a written complaint which was issued on September 11, 1986.

Prior to the second preliminary hearing, which was scheduled for October 7, 1986, defense counsel made a motion for dismissal of the charge contained in the second complaint on the grounds the complaint was issued in violation of Pa.R.Crim.P. 130(d). Upon denial of this motion by the presiding district magistrate, appellee waived his preliminary hearing. Appellee subsequently filed a petition for writ of habeas corpus wherein he requested the Court of Common Pleas of Lackawanna County dismiss the charges against him on Rule 130(d) grounds, and on February 19, 1987, the court issued an Order and Opinion dismissing the criminal complaint.

In its Opinion, the trial court relied on this Court's decision in Commonwealth v. Hatcher, 345 Pa. Super. 481, 498 A.2d 925 (1985), since overturned by our Supreme Court in Commonwealth v. Revtai, et al., 516 Pa. 53, 532 A.2d 1 (1987) (including Commonwealth v. Hatcher at No. 27 W.D. Appeal Docket 1986), and also relied on Commonwealth v. Hagerman, 358 Pa. Super. 253, 517 A.2d 189 (1986) (allocatur pending 309 M.D. Alloc. Dkt. 1986) in granting the writ of habeas corpus. In Hatcher , the Superior Court held "the dismissal of charges at a preliminary hearing precludes rearrest and subsequent prosecution when the second arrest occurs after the five day period for filing charges pursuant to Pa.R.Crim.P. 130(d)." In Hagerman, we held that if dismissal of the first complaint against the defendant was due to lack of due diligence by the Commonwealth, then the filing of a second complaint beyond the five-day period as required by Rule 130(d) is not proper and must be voided. The Hagerman Court could not ascertain from the

[ 371 Pa. Super. Page 489]

    record the reason for dismissal of the charges against the defendant and the case was remanded for such a determination.

The trial court in this case cited Hagerman as authority for granting appellee's petition to dismiss and held that since the dismissal of the first complaint against appellee was due to a lack of due diligence by the Commonwealth, then the filing of the second complaint beyond the five-day period as required by Rule 130(d) was not proper. Unlike Hagerman, however, the court did not provide the Commonwealth an opportunity to establish a plausible explanation for its dereliction nor did it provide the defendant an opportunity to show prejudice.

The Commonwealth (as this case was submitted prior to the Supreme Court decision in Revtai) argues dismissal of the complaint herein would constitute a mechanical application of Rule 130(d) prohibited by the court in Commonwealth v. Schimelfenig, 361 Pa. Super. 325, 522 A.2d 605 (1987), as appellee has made no showing of prejudice. The dissent argues this case is controlled by the Supreme Court's decision in Revtai, and that in addition to Hatcher, supra, the Hagerman case has been overruled, and that appellee's rights under Rule 130(d) were not violated. Hagerman is still pending before the Supreme Court and it is unlikely it would still be pending if it was controlled by Revtai.

The Revtai decision relied heavily on this Court's recent decision in Schimelfenig, supra, where we held that a criminal complaint which technically violates Rule 130(d) will not be dismissed absent a showing of prejudice to the defendant.

The Supreme Court, in the Hatcher portion of Revtai, supra, held that a defendant can be re-arrested after a favorable preliminary hearing determination provided that it is done within the period prescribed by the statute of limitations for the charges in question and that where the arrest is for a crime which falls under Rule 130, the rule

[ 371 Pa. Super. Page 490]

    will apply from the date of the rearrest. ...


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