Commonwealth v. Lewis

523 A.2d 817, 362 Pa. Super. 146, 1987 Pa. Super. LEXIS 7607
CourtSuperior Court of Pennsylvania
DecidedApril 7, 1987
DocketNo. 1486
StatusPublished
Cited by2 cases

This text of 523 A.2d 817 (Commonwealth v. Lewis) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Lewis, 523 A.2d 817, 362 Pa. Super. 146, 1987 Pa. Super. LEXIS 7607 (Pa. Ct. App. 1987).

Opinion

POPOVICH, Judge:

This is an appeal by the Commonwealth from the Order of the Court of Common Pleas of Chester County dismissing a complaint issued against the appellee, Gloria Lewis, as violative of Pa.R.Crim.P. 130(d). We reverse.

The facts are not in dispute and reveal that the appellee was charged with driving while under the influence of alcohol (in violation of 75 Pa.C.S. § 3731(a)(1), (4)) on Au[148]*148gust 1, 1984. However, she was not held in custody, but was, instead, released as permitted by Rule 130(b). A complaint was filed on August 10, 1984, followed by a preliminary hearing on September 12, 1984, resulting in the appellee being held for court.

Thereafter, on January 29, 1985, the appellee was admitted to the Accelerated Rehabilitative Disposition program. However, on April 1, 1986, the appellee was removed therefrom for violating its requirements, i.e., she was convicted in June of 1985 in Delaware County of driving while intoxicated — a thirty-day prison sentence, to be served on weekends, was imposed.

On May 9, 1986, counsel for the appellee submitted an Application to Dismiss Criminal Complaint. Therein, counsel alleged that the arresting officer’s failure to file the 1984 complaint within five (5) days of the appellee’s release required a dismissal of the charges as violative of Rule 130(d), which reads, in pertinent part, that “[w]hen a defendant is released pursuant to paragraph^ ] (b) ..., a complaint shall be filed against the defendant within five (5) days of the defendant’s release.”

After a hearing was held on the Application, the lower court dismissed the complaint for the Commonwealth’s failure to establish due diligence in the prosecution of the appellee, i.e., the filing of the complaint five (5) days after the mandatory period had expired was held to be in contravention of Rule 130(d). As for the sole officer on the police force, who happened to be employed just part-time, recounting that his full-time job and the back log of other police paperwork hampered his efforts to issue the complaint sooner than he did, this was not considered by the lower court to be evidence of due diligence under Commonwealth v. Hatcher, 345 Pa.Super. 481, 498 A.2d 925 (1985). This timely appeal followed.

In light of our disposition in the case at bar, we find it necessary to address only one of the five (5) issues raised [149]*149for our consideration, i.e., whether the allegation of a Rule 130 violation was properly preserved for appellate review.

We start by observing that under Rule 150, a defendant is not entitled to discharge or to have the case against him dismissed unless a defect as to any of the procedures set forth in Chapter 100 covering “Court Cases”, which is applicable to the case instantly, is raised before the conclusion of the preliminary hearing. This Court reached a similar conclusion in Commonwealth v. Schimelfenig, 361 Pa.Super. 325, 522 A.2d 605 (1987) (en banc).1 Nonetheless, because the discussion on the waiver issue was limited in form, we take this occasion to elaborate on the basis for such a time-honored requirement to preserve one’s claim for post-trial or appellate review.

The requirements that a timely objection to improprieties, whether they be procedural or substantive, be lodged at the earliest possible point in the judicial process would seem to have been entrenched in the law since Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974), wherein our Supreme Court held that basic and fundamental errors were not automatically subject to review on appeal if they were not first preserved by specific and timely objections at trial. The Dilliplaine rationale has been applied to the failure to properly preserve trial errors in criminal matters as well. See Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974). In fact, Justice Pomeroy wrote in a [150]*150concurring opinion, joined by then Chief Justice Jones and Justice Eagen, that “to preserve issues for appellate review [one must do so] by the appropriate means at trial and intermediate stages.” 2 Commonwealth v. Mitchell, 464 Pa. 117, 127-28 n. 1, 346 A.2d 48, 54 n. 1 (1975) (Emphasis added). On the policy reasons behind such a requirement see Tagnani v. Lew, 493 Pa. 371, 376, 426 A.2d 595, 597 (1981).

We do not see why the principle enunciated in Dilliplaine should be skewed to benefit the appellee here. To do so would undermine the whole precept of affording the jurist initially deciding the matter the first opportunity to remedy any defect, whether they be substantive or procedural in nature. Cf. Commonwealth v. Brown, 234 Pa.Super. 119, 124, 338 A.2d 659, 661 (1975) (Dissenting Opinion by Hoffman, J.) (“The thrust of Clair is the idea that the trial judge must be given an opportunity to rectify errors at the time they are made: ‘ “[A] party may not remain silent and take chances on a verdict and afterwards complain[ ] of matters which, if erroneous, the Court would have corrected.” ’ ” (Citations omitted)). By postponing the resolution of the perceived defect until later on in the judicial process benefits neither the defendant nor the system looked to by the citizenry to be expeditious and just.

[151]*151Moreover, the concept of preserving issues for appellate review has gone through an evolutionary process (see Dilliplaine and its progeny), which presently appears to be in an era of stability with regard to the specificity and timeliness of objections necessary to preserve matters for review. See, e.g., Commonwealth v. Rounds, 510 Pa. 524, 510 A.2d 348 (1986); Commonwealth v. Holmes, 315 Pa.Super. 256, 461 A.2d 1268 (1983) (en banc).

Furthermore, there is evidence that the penchant for timely objections for preservation purposes, and the dire consequences in their absence, is not of recent vintage. For example, in Commonwealth v. Mills, 235 Pa.Super. 173, 340 A.2d 900 (1975) a defendant was tried by a jury and found guilty of operating a motor vehicle while under the influence of intoxicating liquor.

A further examination of the facts in Mills reveals that the defendant was held for court following a preliminary hearing. His pretrial motion to suppress was granted, but his application to dismiss the action was denied. On appeal, the accused asserted that his illegal arrest, which was assumed for argument purposes, could not be cured by the filing of the indictment. The disposition of this contention is instructive; viz.:

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Bluebook (online)
523 A.2d 817, 362 Pa. Super. 146, 1987 Pa. Super. LEXIS 7607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-lewis-pasuperct-1987.