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HomeMy WebLinkAbout98-0442 miscCOMMONWEALTH OF : IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-0442 MISCELLANEOUS THOMAS C. PSZCZOLKOWSKI, CRIMINAL Defendant IN RE: DEFENDANT'S MOTION TO VACATE ORDER OF COURT AND NOW, April 16, 1999, pursuant to the Opinion filed on this date, Defendant's Motion to Vacate is denied. All matters related to the refiling of criminal charges before District Justice Correal may now proceed. By the Court, Jaime M. Keating, Esquire Cumberland County District Attorney's Office For the Commonwealth P. Richard Wagner, Esquire Mancke, Wagner, Hershey & Tully 2233 North Front Street Harrisburg, PA 17110 For the Defendant COMMONWEALTH Of : IN THE COURT Of COMMON PLEAS OF PENNSYLVANIA : CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 98-0442 MISCELLANEOUS THOMAS C. PSZCZOLKOWSKI, CRIMINAL Defendant : IN RE: DEFENDANT'S MOTION TO VACATE OPINION HOFFER, P.J.: In this opinion, the Court shall address Defendant's Motion to Vacate the Commonwealth's Petition to Refile a Complaint. The facts of the case are as follows: on September 4, 1998, Defendant Thomas C. Pszczolkowski was charged with driving under the influence of alcohol; A criminal complaint was filed before Cumberland County District Justice Clement, September 14, 1998. A preliminary hearing in the matter was held on November 19, 1998. Before any substantive testimony could be heard, District Justice Clement dismissed the charges because the form of the complaint did not comply with Pa.R.Crim. P. 104(6)(a), in that the complaint did not contain a sufficient summary of the facts to advise Defendant of the nature of the charges. After the dismissal, the Commonwealth filed a petition, ex parte, with this Court asking for leave to refile the criminal complaint against Defendant before District Justice Correal, another Cumberland County district justice. The petition was granted. When Defendant learned of the refiling of the 98-0442 MISCELLANEOUS criminal charges, he filed the motion currently before this Court asking to vacate the order signed December 22, 1998. Discussion Defendant claims, given that the original complaint was dismissed by the District Justice for failure to comply with Pa.R.Cdm. P. 104(6)(a), the order permitting refiling of the criminal charges must be vacated because the Commonwealth's only recourse from the dismissal was to appeal the district justice's decision. Although the Pennsylvania Rules of Cdminal Procedure do not address re-arrest procedures, it is clear that a defendant may be re-arrested after charges against him have been dismisse~l so long as the statute of limitations period has not expired. Commonwealth v. Ernest Jones, 429 Pa. Super. 601,605, 633 A.2d 185, 187 (1993). "Where the. Commonwealth in good faith alleges improper dismissal by a district justice, it must have the opportunity to bring the re- arrest before another district justice. Commonwealth v. Shoop, 420 Pa. Super. 606, 610, 617 A.2d 351,353 (1992). Defendant relies upon Commonwealth v. LaBelle, 531 Pa. 256, 612 A.2d 418 (1992), to argue that the Commonwealth has no right to refile criminal charges against him with another district justice. In LaBelle, a criminal complaint, filed against a defendant charged with driving under the influence of alcohol, was 2 98-0442 MISCELLANEOUS dismissed by a district justice because the Commonwealth had failed to file the complaint within five days of the defendant's release from custody as required by Pa. R. Crim. P. 130(d). Id...~. The court held that the Commonwealth could not refile the charges after the Pennsylvania Supreme Court had overturned the five day filing rule, but before the statute of limitations expired, because that dismissal was based upon the application of a rule of law. Id. at 259-60, 612 A.2d at 420. The court reasoned that, unlike a dismissal for failure to make a prima facie case or failure to charge a crime, the dismissal for failure to file within a set time period could not be cured without a finding that the rule of law was in error. Id. at 259, 61 2 A.2d at 420. The Commonwealth had no avenue other than appealing the application of the five day filing rule because "[t]he Commonwealth was not able to add to its evidence and resubmit the ~case to another magistrate to cure the defect." Id. Defendant has overlooked the interpretation of LaBelle as set forth by the Superior Court in Commonwealth v. Douglas F. Jones, 450 Pa. Super. 433, 676 A.2d 251 (1996). In Douglas F. Jones, the court allowed a criminal complaint to be refiled against a defendant whose case was dismissed because the Commonwealth failed to present witnesses. Id. The court explained LaBelle as follows: 3 98-0442 MISCELLANEOUS The court in LaBelle drew a distinction between dismissals of criminal complaints based on remediable or curable, defects and dismissals for unremediable, or incurable, defects. The court noted that remediable defects in a criminal prosecution such as failure to make a prima facie case and failure to charge a crime do not bar refiling upon dismissal. In contrast, the defect in LaBelle, failure to file the complaint within the time mandated by Pa. R. Crim. P 130(d) as interpreted by the Pennsylvania Superior Court, was incurable except by appeal challenging interpretation of the rule--any mere refiling would still have been untimely. The court concluded that dismissals for such incurable defects become res judicata if no timely appeal is taken. The court noted that "analytic[ali similarity" delineates the classes of remediable-defect cases and incurable-defect cases. Id. at 435, 676 A.2d at 252 (citations omitted). The court in Douglas F. Jones held that the defect, failure to present witnesses, was curable, if the Commonwealth presented witnesses, and the case could be refiled. Id__:. In the case at bar, the defect cited as the basis for dismissal by the District Justice, failure in the form of the complaint to include a sufficient summary of the facts to enable Defendant to adequately prepare a defense as required by Pa. R. Crim. P. 104(6)(a), is easily curable by refiling. The Commonwealth must merely include on the face of the complaint a summary of the facts giving rise to the arrest of Defendant sufficient to comply with Pa. R. Crim. P. 104(6)(a). There is no need for a finding that the rule itself is unlawful in order to correct the defect. Because 4 98-0442 MISCELLANEOUS the defect is curable and the Commonwealth has alleged an improper dismissal, the Commonwealth must be given the chance to present the case before another district justice and the order allowing refiling shall not be vacated. Defendant's alternative theory, to support his motion to vacate the order allowing refiling of the criminal complaint, is that he did not receive reasonable notice and an opportunity to respond as required by Pa. R. Crim. P. 23(b)(3). Fairness requires that a defendant be given notice and an opportunity to respond to the Commonwealth's written motion requesting transfer of the case to another district justice. Commonwealth v. Sufrich, 320 Pa. Super. 56, 59, 466 A.2d 1058, 1060 (1983). However, reversal is not always the proper remedy for failure to follow the rule. In Commonwealth v. Stehley, 350 Pa. Super. 311,325-26, 504 A.2d 854, 861 (1986), a defendant whose.case was transferred by ex parte order under Pa. R. Crim. P. 23(b)(3), after charges were dismissed at the defendant's first preliminary hearing, was given a continuance of his second preliminary hearing held before a newly assigned district justice in order to better prepare his defense. The court held that the extra time given to prepare a defense rendered the failure to follow Pa. R. Crim. P. 23(b)(3) harmless and reversal was not necessary. Id. In the case at bar, the Court signed an ex parte order allowing refiling of the Defendant's case before another District Justice. Upon Defendant's filing of his 5 98-0442 MISCELLANEOUS motion to vacate the order, all proceedings before that District Justice were stayed. Defendant has been given the opportunity to heard on the merits of his arguments to vacate the ex parte order before any action on the refiling has taken place. Although Pa. R. Crim. P. 23(b)(3) requires notice and an opportunity to be heard before a case can be transferred to another district justice, failure by the Commonwealth to follow the rule does not require that this Court vacate the December 22, 1998 order. Defendant's motion is hereby denied.