Com. v. Kerins, T.

J-A02037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
THOMAS J. KERINS
Appellee No. 3399 EDA 2013
Appeal from the Order November 12, 2013
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004816-2012
BEFORE: PANELLA, J., LAZARUS, J., and WECHT, J.
MEMORANDUM BY PANELLA, J. FILED APRIL 24, 2015
The Commonwealth of Pennsylvania appeals from the order entered
November 12, 2013, in the Court of Common Pleas of Montgomery County,
quashing the bills of information and striking the criminal complaint filed
against Appellee, Thomas J. Kerins. After review, we reverse and remand
for further proceedings.
The facts and history of this case are uncontested. On August 6,
2011, Appellee was arrested for driving under the influence – general
impairment (second offense), driving under the influence – highest rate
(second offense), and disregard of a traffic lane. A criminal complaint was
filed on January 5, 2012. Subsequently, the magisterial district justice
signed the complaint on January 9, 2012, after the affiant, Trooper Peter
Burghart, verified the facts and accompanying affidavit of probable cause.
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Appellee subsequently waived his right to a preliminary hearing. Prior to
that time, Appellee did not raise any issues with respect to the disparity
between the date the complaint was filed and the date it was signed by the
issuing authority, or allege that the issuing authority did not sign the
complaint in the presence of the affiant.
On November 6, 2012, Appellee filed a motion to quash the bills of
information, arguing due process violations of the United States
Constitution, Pennsylvania Constitution, and the Pennsylvania Rules of
Criminal Procedure. The trial court heard argument and later issued an
order granting Appellee’s motion. The Commonwealth timely appealed,
asserting that the trial court’s order substantially handicapped the
prosecution. See Pa.R.A.P. 311(d).
The Commonwealth frames the issue raised on appeal as follows.
Whether the lower court erred by striking the criminal complaint
and quashing the bills of information, where despite the fact that
the district justice signed the criminal complaint several days
after it was filed, defendant waived his objection by failing to
raise it at the preliminary hearing and, moreover, defendant
conceded that he suffered no prejudice from the defect?
Commonwealth’s Brief at 5.
The decision to grant a motion to quash a criminal information or
indictment is within the sound discretion of the trial judge and
will be reversed on appeal only where there has been a clear
abuse of discretion. Discretion is abused when the course
pursued by the trial court represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
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Commonwealth v. Wyland, 987 A.2d 802, 804-805 (Pa. Super. 2010)
(internal quotes and citations omitted).
The Commonwealth argues that the trial court’s dismissal of the
complaint directly contradicts Pennsylvania Rule of Criminal Procedure 109,
which provides:
Rule 109. Defects in Form, Content, or Procedure
A defendant shall not be discharged nor shall a case be
dismissed because of a defect in the form or content of a
complaint, citation, summons, or warrant, or a defect in the
procedures of these rules, unless the defendant raises the
defect before the conclusion of the trial in a summary case or
before the conclusion of the preliminary hearing in a court
case, and the defect is prejudicial to the rights of the
defendant.
(emphasis added). The Commonwealth asserts that Appellee has waived
any challenges to the complaint because he did not raise them at the
preliminary hearing. The Commonwealth additionally contends that even if
Appellee had properly preserved a challenge to the complaint, he did not
establish prejudice. Our examination of this issue is one of statutory
interpretation, which is a matter of law. Thus, our standard of review is de
novo and our scope of review is plenary. Commonwealth v. Spence, 91
A.3d 44, 46 (Pa. 2014) (citation omitted).
When construing a [statutory provision] utilized by the General
Assembly in a statute, our primary goal is “to ascertain and
effectuate the intention of the General Assembly.” 1 Pa.C.S. §
1921(a). “Every statute shall be construed, if possible, to give
effect to all its provisions.” Id. However, “[w]hen the words of a
statute are clear and free from all ambiguity, the letter of it is
not to be disregarded under the pretext of pursuing its spirit. Id.
§ 1921(b). “Words and phrases shall be construed according to
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rules of grammar and according to their common and approved
usage.” Id. § 1903(a). In other words, if a term is clear and
unambiguous, we are prohibited from assigning a meaning to
that term that differs from its common everyday usage for the
purpose of effectuating the legislature's intent. Additionally, we
must remain mindful that the “General Assembly does not intend
a result that is absurd, impossible of execution or unreasonable.”
Id. § 1922(1).
Commonwealth v. Cahill, 95 A.3d 298, 301 (Pa. Super. 2014).
The plain language of Rule 109 mandates that a case shall not be
dismissed due to a defect in the form, content or procedure of a complaint
unless 1) “the defendant raises the defect … before the conclusion of the
preliminary hearing in a court case” and 2) “the defect is prejudicial to the
rights of the defendant.” The Comment to Rule 109 explains that
“[o]rdinarily, if a defendant does not raise a defect … before the conclusion
of the preliminary hearing, the defendant cannot thereafter raise the defect
as grounds for dismissal or discharge at a later stage in the proceedings.”
In order to satisfy the prejudice prong required for dismissal under Rule 109,
a defendant must demonstrate that he suffered “manifest and palpable harm
as a result of the alleged noncompliance.” Commonwealth v. Gillmore,
726 A.2d 1063, 1067 (Pa. Super. 1999) (analyzing Pa.R.Crim.P. 90, a
precursor to current Rule 109).
Instantly, it is undisputed that Appellee did not raise a challenge to the
form or procedure of the complaint prior to the time at which he waived his
preliminary hearing. Appellee additionally concedes that he received
sufficient and proper notice of the charges filed against him. Indeed,
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defense counsel frankly admitted, “I’m not going to claim there is prejudice
as a result of it. There is no prejudice. We can defend the case if needed.”
N.T., Hearing, 11/7/13 at 9-10. Nonetheless, Appellee argued, and the trial
court agreed, that Rule 109 is inapplicable to this case. In granting
Appellee’s motion and dismissing the complaint, the trial court determined
that the magisterial district justice’s failure to sign and verify the complaint
prior to accepting the complaint for filing in violation of Pennsylvania Rule of
Criminal Procedure 5081 was not a defect for the purposes of Rule 109, but
rendered the complaint void from its inception, for which there was no
remedy. Alternatively, the trial court agreed with Appellee’s argument that
the complaint was additionally void because “the district justice did not
sign/verify the compliant in the presence of the affiant as it says in the
sworn portion of the document.” Trial Court Opinion, 5/7/14 at 6.
We disagree with the positions advanced by the Appellee and the trial
court. In its opinion, the trial court implicitly adopts the argument advanced
by Appellee that a “defect” under Rule 109 is limited to an omission of the
requirements enumerated in Pennsylvania Rule of Criminal Procedure 504,
relating to Contents of Complaint. Id. at 5-6. Nothing in the plain
language of Rule 109 limits a defect warranting dismissal of a complaint to
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1
Rule 508(A)(1) provides that the issuing authority shall certify on the
complaint, prior to filing, that the “complaint has been properly completed
and executed.”
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an omission of content under Rule 504; nor does Appellee provide any legal
authority to support this narrow interpretation. More importantly, this
restrictive reading of Rule 109 flatly ignores the fact that the rule’s title and
context clearly encompasses “Defects in Form, Content, or Procedure”
(emphasis added).
The history of Rule 109 further illustrates that precursors to that rule
were specifically amended to include reference to procedural defects. As
noted by an en banc panel of this Court in Commonwealth v.
Schimelfenig, 522 A.2d 605 (Pa. Super. 1987), prior Pennsylvania Rule of
Criminal Procedure 150 (which Rule 109 was enacted to replace, see Rule
109 Comment) was amended because cases were
being dismissed for minor, technical failures to comply with the
procedures for the institution and conduct of proceedings before
the minor judiciary, as set forth in Chapters 50 and 100 of the
Rules. The Committee realized that this probably occurs because
present Rule 150 does not specifically refer to the effect or
consequences of non-compliance with or defects in the
procedures.... It was agreed that specific language addressing
procedural defects would make Rule 150 clearer and would
thereby avoid improper case dismissals.
Id. at 611-612 (citing Report of Procedural Rules Committee, “Proposed New
Pa.R.Crim.P. 70 and Amendment to Pa.R.Crim.P. 150,” Pennsylvania
Bulletin, Vol. 11, No. 29, at 2550 (July 18, 1981)).
Here, the magisterial district justice undisputedly failed to sign and
verify the complaint prior to accepting the complaint for filing, which we find
constitutes a defect in procedure. See, e.g., Gillmore, supra (holding that
officer’s failure to receive Appellant’s certified driving record prior to issuing
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citation for driving while license is revoked due to a DUI in violation of the
verification provisions of 75 Pa.C.S.A. § 1543(d) constituted a defect in
procedure under former Rule 90). Rule 109 is therefore applicable to the
case at bar, and it is incumbent upon Appellee to establish not only a defect,
but also that he suffered “manifest and palpable harm as a result of the
alleged noncompliance.” Id.
As previously noted, Appellee did not raise this defect in procedure at
the preliminary hearing. On this basis, we conclude that Appellee has
waived his allegation of error. See, e.g., Commonwealth v. Lewis, 523
A.2d 817 (Pa. Super. 1987) (defendant’s failure to object to untimely filed
complaint until one and one-half years after preliminary hearing rendered
claim waived under prior Rule 150).
Moreover, even if we were to ignore the issue of waiver, “[a]s a
condition of relief regardless of whether the defect is in form, content, or
procedure, the court or issuing authority must determine that there is actual
prejudice to the rights of the defendant.” Pa.R.Crim.P. 109, Comment.
Here, despite Appellee’s concession that “[t]here is no prejudice” as a result
of the magisterial district justice’s error, the trial court independently
determined that “the prejudice lies in that, from the start, this Defendant’s
presumption of innocence was ignored…. The process of filing a criminal
complaint against an individual and figuring out if there is basis to do so
afterwards, defies common sense and flies in the face of due process.” Trial
Court Opinion, 5/7/14 at 8. While we certainly do not sanction the district
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justice’s error in this instance, we do not agree that the error resulted in
manifest prejudice.
The filing of the complaint provided Appellee with formal notice of the
charges against him, enabling him to prepare for trial. Although not signed
by the magistrate when initially filed, this error was rectified in a timely
fashion. We further note that Appellee does not argue that the error was
rectified after the expiration of the statute of limitations for crimes with
which he was charged. Under these circumstances, we find that such
technical non-compliance with the Rules of Criminal Procedure did not
deprive Appellee of any constitutional rights or otherwise result in “manifest
or palpable harm” such that would warrant dismissal of the complaint.
We likewise reject the argument accepted by the trial court that the
complaint filed in this matter was void because the magistrate did not review
and sign the complaint “in the presence of the affiant.” Appellee’s Brief at 4.
Rule 504 provides that a complaint shall contain, inter alia, a “verification by
the affiant that facts set forth in the complaint are true and correct to the
affiant’s personal knowledge, or information and belief, and that any false
statements therein are made subject to the penalties of the Crimes Code, 18
Pa.C.S.A. § 4904, relating to unsworn falsification to authorities,” as well as
“the signature of the affiant and the date of execution of the complaint.”
Pa.R.Crim.P. 504(11), (12). Additionally, Rule 508 requires that the issuing
authority shall certify on the complaint, prior to filing, that the “complaint
has been properly completed and executed.” Pa.R.Crim.P. 508(A)(1).
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The trial court imparts a visual requirement that the affiant must
appear personally before the magistrate to verify the complaint. We find no
support for such a contention either in Rules 504 and 508 or in relevant case
law. To the contrary, as aptly noted by the Commonwealth, a panel of this
Court in Commonwealth v. Bruder, 528 A.2d 1385 (Pa. Super. 1987),
rev’d on other grounds, Pennsylvania v. Bruder, 488 U.S. 9 (1988),
specifically held that “we discern no language in the rule, or in the
comments to the rule, which require the police to personally appear and
verify the complaint before the district justice involved in the case.” Id. at
1386 (referencing former Rule 134, a precursor to current Rule 508). As the
trial court clearly imposed an additional requirement outside of that
mandated by Rules 504 and 508, we find that dismissal based on the
verification of the complaint out of the presence of the affiant was in error.2
Based on the foregoing, we conclude that dismissal of the complaint
and the discharge of Appellee was unwarranted. We therefore reverse the
trial court’s order quashing the bill of information and striking the criminal
complaint and remand for further proceedings.
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2
In support of this theory, the trial court relies upon the Montgomery
County Court of Common Pleas decision in Commonwealth v. Wiggins,
No. 1600-11 (C.P. Montgomery Feb. 19, 2014), aff’d, 2578 EDA 2013 (Pa.
Super., filed Dec. 9, 2014). That decision, which involved the lack of
simultaneous audio-visual communication during the search warrant issuing
process in violation of Pa.R.Crim.P. 203(C), is plainly inapposite. As noted,
there is no simultaneous visual requirement in Rules 504 or 508.
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Order reversed. Case remanded for proceedings consistent with this
memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2015
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