Commonwealth v. WolgemuthCommonwealth v. Wolgemuth
- Reporters:
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- Before:
- Cirillo
¶ 1 This is an appeal from an order of the Court of Common Pleas of Lancaster County granting the Commonwealth’s petition for a hearing following dismissal of a second complaint filed against appellant, Joseph Wolgemuth. We reverse.
¶ 2 While on routine patrol, Officer Luis Mendez, Jr. observed Wolgemuth driving erratically. Officer Mendez radioed Officer Wayne R. Bledsoe, who was patrolling the street on which Wolgemuth was turning. Officer Bledsoe initiated a stop, and ultimately Wolgemuth turned into his driveway. Officer Mendez arrived. When Wolgemuth exited his vehicle, Officer Bledsoe noticed that Wolgemuth’s eyes were bloodshot and that he emitted a strong odor of alcohol. Wolgemuth was unable to produce his driver’s license, and he had difficulty standing. He had also defecated in his pants. Officer Mendez arrested Wolgemuth. A blood test was administered, which indicated a blood alcohol content of .251%.
¶ 3 Wolgemuth was charged with driving under the influence of alcohol or a controlled substance in violation of
(1) Whether the Commonwealth’s failure to file a timely appeal from the dismissal of the first criminal complaint because of a non-remediable and incurable violation ofPa.R.Crim.P. 102(c) and 150 was res judicata precluding the Commonwealth’s filing of the second criminal complaint and barring the Commonwealth from further prosecution of the appellant on the DUI charges and accompanying summary offense charge of careless driving.
(2) Whether the trial court’s order of November 5, 1998 is an error of law, an abuse of discretion and an improper exercise of the trial court’s jurisdiction because there were no criminal charges pending against the appellant as a result of the dismissal ] by the issuing authority of the Commonwealth’s second criminal complaint against the appellant for failure of the Commonwealth to file a timely appeal from the dismissal of the first criminal complaint because of non-remediable and incurable violations ofPa.R.Crim.P. 102(c) and 150.
¶ 4 In Commonwealth v. La Belle, our supreme court drew a distinction between dismissals of criminal complaints based on remediable, or curable, defects and dismissals for incurable defects. La Belle, supra, 531 Pa. at 259-60, 612 A.2d at 420. The court noted that curable defects in a criminal prosecution such as failure to make a prima facie case, see, e.g., Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975), and the failure to charge a crime, see, e.g., Commonwealth v. Mirarchi, 481 Pa. 385, 392 A.2d 1346 (1978), do not bar refiling upon dismissal. La Belle, 531 Pa. at 258, 260 n. 1, 612 A.2d at 419, 420 n. 1. In contrast, the defect in La Belle, failure to file the complaint within the time mandated by
¶ 5 The defect in the instant case, failure to timely file a complaint under
Such violations intrinsically involve legislatively recognized, significant, and permanent damage to the interests of defendants. Instructively, all of the other cases cited by [appellee] in support of the trial court’s reading of La Belle involve similar prosecutorial failures to take timely action. See Commonwealth v. Sweeney, 376 Pa.Super. 476, 546 A.2d624 (1988) (involving dismissal of charges for violation of Pa.R.Crim.P. 1100 (requiring trial within 180 days of filing of complaint)), appeal denied, 521 Pa. 620, 557 A.2d 723 (1989); Commonwealth v. Butler, 389 Pa.Super. 209, 566 A.2d 1209 (1989) (same); Commonwealth v. Andrews, 251 Pa.Super. 162, 380 A.2d 428 (1977) (same).
Commonwealth v. Jones, 450 Pa.Super. 433, 676 A.2d 251, 252 (1996). See also Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987) (expressly overruling Commonwealth v. Revtai, 343 Pa.Super. 149, 494 A.2d 399 (1985), which had held the five-day limitation rule was inflexible, and holding that failure to comply with the five-day limit is not intended to be grounds for dismissal unless the defendant is prejudiced by the delay.).
¶ 6 The Commonwealth is correct that dismissal is improper unless the defendant is prejudiced by the delay. See La Belle, supra; Schimelfenig, supra. See also
¶ 7 The Commonwealth, however, did not appeal the dismissal order. Instead, the Commonwealth refiled the complaint, which again was dismissed. At this point, the Commonwealth sought relief in the court of common pleas; however, it was after the first dismissal that relief should have been sought. The Commonwealth’s failure to file an appeal from the initial dismissal order precluded its refiling charges. La Belle, 612 A.2d at 420. See Commonwealth v. Douglass, 372 Pa.Super. 227, 539 A.2d 412 (1988) (an order granting discharge on grounds which would ostensibly preclude the refiling of new charges is not subject to de novo review by another issuing authority, but is instead subject to direct appeal as a final order).
¶ 8 Order reversed.
¶ 9 STEVENS, J., concurs in the result.
Notes
. Pennsylvania Rule of Criminal Procedure 102(c), [formerly numbered 130(d) ] states:
When a defendant is released pursuant to paragraph (b), a complaint shall be filed against the defendant within 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. (emphasis added).