Commonwealth v. VeneriCommonwealth v. Veneri
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- Before:
- Cavanaugh
These are consolidated appeals in two separate cases from the Court of Common Pleas of Delaware County. The common issues in these otherwise unrelated cases are (1) whether an information containing only a rubber stamp facsimile of the signature of the district attorney is properly signed within the meaning of Pa.R.CrinuP. 225(b), and (2) assuming that a rubber stamp is insufficient, whether its use renders the information void ab initio or merely voidable. Because these issues have been the the subject of continuous debate in our decisional law 1 we consolidated these cases for en banc consideration.
On July 11, 1978, a complaint was filed charging defendant Anthony Veneri with robbery and related charges in connection with an armed robbery at the Greater Delaware Valley Savings and Loan Association. A second complaint, containing similar charges in connection with an armed robbery at the Elmwood Federal Savings and Loan Association, was filed against defendant on July 13, 1978. Bills of information were subsequently filed against defendant, each containing a rubber stamp facsimile of the signature of Frank T. Hazel, the district attorney of Delaware County. The cases were consolidated for trial before a jury and defendant was convicted of both robberies. Post-verdict motions were filed and denied. This appeal followed. In his brief, defendant, for the first time, argues that his trial was void ab initio because the bills of information had not been properly signed by the district attorney. Accordingly, defendant claims that he is entitled to a discharge.
Defendant Craig Thomas was charged by a complaint of April 11, 1979, -with various drug offenses. A criminal information was filed against him containing a rubber stamp
When the vehicle for initiating a criminal trial (i.e. the information) is unsigned, it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made. The signature on the information is, therefore, a vital ingredient which guarantees the authenticity and reliability of the document. The requirement of Rule 225(b) that the information be signed by the attorney for the Commonwealth must, as a result, be deemed mandatory rather than merely directory.
Id., 258
Pa.Super. at 156-157, 392 A.2d at 731. Next, in
Commonwealth v. Levenson,
282 Pa.Super. 406, 422 A.2d 1355 (1980), we considered an information in which an assistant district attorney had signed the district attorney’s name followed by his own initials. The Court noted that the Judicial Code provides that an information may be signed by “any assistant district attorney whose authority to act for the district attorney ... is evidenced by a written designation executed by the district attorney . . . and filed with the clerk of the courts.”
The Pennsylvania Supreme Court first addressed the signature requirement of
Contakos,
which involved a rubber stamp signature of a district attorney and initialing by a duly designated assistant district attorney, was distinguished by our court in
Commonwealth v. Emanuel,
285 Pa.Super. 594, 428 A.2d 204 (1981) (allocatur granted) where we considered informations identical to those in the instant appeals,
viz.,
containing only a rubber stamp facsimile of the signature of Delaware County District Attorney Frank T. Hazel. We held in that case that the use of a rubber stamp facsimile, standing alone, does not meet the signature requirement of
Were we to approve the use of a rubber stamp, it would be virtually impossible to identify the person who stamped the information. See Commonwealth v. Levenson, supra. If that person is unknown, then, as in the case of an information with a blank signature line, “it is not at all apparent that a reasoned evaluation of the advisability of instituting a criminal trial has been made.” Commonwealth v. Belcher, supra. Moreover, were we to approve the Commonwealth’s practice in this case, the Judicial Code provision requiring district attorneys to file with the clerk of the courts a written designation identifying assistant district attorneys authorized to sign informations for them would be rendered meaningless. An assistant district attorney who has not been so authorized could “sign” informations with the rubber stamp. We believe that it is not an unreasonable burden to require district attorneys, or assistant district attorneys acting for them in accordance with 42 Pa.C.S. § 8931(i) , to sign informa-tions manually. Accordingly, we hold that the lower court properly concluded that the informations in this case were not “signed” by the district attorney as required by Rule 225(b).
Id., 285 Pa. Super, at 597-598, 428 A.2d at 206 (citation omitted).
In this appeal, we are asked to evaluate the continued viability of
Commonwealth
v.
Emanuel, supra.
4
We have done so and, accordingly, concur in its conclusion that the signature requirement of
We see no merit to the Commonwealth’s argument that
We must then decide whether the absence of a required signature renders the information void ab initio or merely voidable.
As we have noted, the court in
Commonwealth
v.
Belcher, supra,
held that the signature requirement of
No decision since
Belcher
has squarely raised the void/voidable issue. Such a discussion was unnecessary in
Commonwealth v. Contakos, supra,
where the Supreme Court held the challenged information to be sufficient. The
Contakos
court did cite
Belcher,
but only for the purpose of demonstrating the Court’s consideration of the concerns raised therein regarding the need for a signed information. The Court, furthermore, distinguished
Belcher
as presenting a different question than that before it in
Contakos,
i.e. an information which contained no signature whatsoever. Un
In Commonwealth v. Emanuel, supra, we declined to address the void/voidable issue because the defendant, in that case, had objected to the rubber stamped information in a pre-trial motion. See also, Commonwealth v. Dupree, 290 Pa.Super. 202, 434 A.2d 201 (1981).
Hence Belcher remains the existing authority on the void/voidable question. Interestingly, however, two recent cases decided by this Court appeared to disregard Belcher. In Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981), the court stated “under the state of the present law, appellant’s failure to file a pre-trial motion to quash the information constitutes a waiver of his right to assert this impropriety in any subsequent proceeding.” Id., 292 Pa.Super. at 197 n. 5, 436 A.2d at 1220 n. 5. That portion of Harper was quoted with approval in Commonwealth v. Watts, 294 Pa. Super. 319, 439 A.2d 1220 (1982). Neither Harper nor Watts contained a reference to Belcher.
While we find that
Harper
and
Watts
were wrongly decided in light of
Belcher,
we believe that
Belcher
is incorrect law and must be overruled. We instead hold that the signature requirement of
We have already concluded that a signed information is required as a memorial that there has in fact been a responsible decision to proceed with charges by one who holds a public trust. A defendant has a right to demand that a public official who accuses him of a crime give tangible evidence of his prosecutorial decision; that is, to require that the attorney for the Commonwealth or his designee sign- the information and thereby assume responsibility for his discre
Our reasoning is twofold. First, it is clear that the absence of a signature does not prejudice the defendant in his preparation for trial. Secondly, it is unrealistic to assume that
Some of our rules are sufficiently significant so as to entitle a defendant to a discharge where they have been violated even though their violation is unrelated to guilt or innocence, e.g.
Our analysis leaves remaining the question of whether the defendants have timely raised the defect in the informations by which they were charged. Defendant Veneri first challenged the use of a rubber stamped information in his appeal to this Court; defendant Thomas did so after the Commonwealth had rested its case at trial. Neither defendant filed a pre-trial motion to quash the informations as required by
Notes
. See, e.g. Commonwealth v. Brinton, 303 Pa.Super. 14, 21 n. 12, 449 A.2d 54, 57 n. 12 (1982).
. “Signature” is defined in Black’s Law Dictionary, 4th edition, as follows:
The act of putting down a man’s name at the end of an instrument to attest its validity, the name thus written. A “signature” may be written by hand, printed, stamped, typewritten, engraved, photographed ... it being immaterial with what kind of instrument a signature is made.
. “Signed” and “Subscribed” are distinguished in Black’s Law Dictionary, 4th edition, as follows:
To “sign” is merely to write one’s name on paper, or- declare assent or attestation by some sign or mark, and does not, like “subscribe,” require that one should write at the bottom of the instrument signed.
The word “subscribed” is more restricted than the word “signature.” The word “signature” in its origin involves merely a sign, the word “subscribed” involves a writing.
. Three recent decisions of this court have cited Commonwealth v. Emanuel, supra, but have not re-assessed its conclusions. Commonwealth v. Dupree, 290 Pa.Super. 202, 434 A.2d 201 (1981); Commonwealth v. Harper, 292 Pa.Super. 192, 436 A.2d 1217 (1981); Commonwealth v. Watts, 294 Pa.Super. 319, 439 A.2d 1220 (1982).
. We have reviewed the several additional claims raised by appellant Veneri and find that they do not entitle him to relief.