Com. v. Bozarth, C.

J-A17004-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
CHRISTOPHER DAVID BOZARTH :
:
Appellee : No. 224 EDA 2017
Appeal from the Order December 16, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-MD-0002487-2016
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 19, 2017
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Bucks County Court of Common Pleas, which granted the
motion of Appellee, Christopher David Bozarth, to dismiss all charges against
him for violation of Pa.R.Crim.P. 519. We affirm.
The trial court opinion fully sets forth the relevant facts and procedural
history of this case. Therefore, we summarize them as follows. On August
13, 2015, Corporal Harnett observed a vehicle swerving. The corporal
initiated a traffic stop and upon speaking with Appellee (the driver), Corporal
Harnett observed Appellee had bloodshot/glassy eyes and slurred speech,
and detected a strong odor of alcohol emanating from Appellee. Appellee
said he was traveling home from his girlfriend’s house and admitted he had
consumed one or two drinks. Corporal Harnett administered field sobriety
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-A17004-17
tests, which Appellee failed. Based on his observations, Corporal Harnett
arrested Appellee for driving under the influence of alcohol (“DUI”). Initially,
Appellee said he would submit to chemical testing, but he later refused at
the hospital. Corporal Harnett then transported Appellee to the police
station where he was released to the custody of a relative several hours
later.
On November 6, 2015, eighty-five days after Appellee’s arrest, the
Commonwealth charged Appellee with DUI and summary traffic offenses. At
Appellee’s preliminary hearing on December 15, 2015, Appellee made an
oral motion for dismissal of the charges under Pa.R.Crim.P. 519(B)(2)
(requiring Commonwealth to file complaint against defendant within five
days after release from custody where most serious offense charged is
misdemeanor of second degree or misdemeanor of first degree in DUI case).
The magistrate granted Appellee’s request. The Commonwealth timely filed
a notice of appeal to the Court of Common Pleas on January 13, 2016.
On June 1, 2016, following oral argument, the trial court vacated the
magistrate’s order and remanded for a hearing on whether Appellee suffered
prejudice as a result of the filing delay. The magistrate held the remand
hearing on August 23, 2016. Appellee argued for dismissal of the charges
based on: (1) the extreme delay in filing the charges which caused anxiety
and uncertainty in Appellee’s daily life; (2) the loss of his former girlfriend as
a key witness, who Appellee claimed would have been able to make a
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statement in Appellee’s defense had the charges been promptly filed; and
(3) the Commonwealth’s lack of justification for the delay. Following the
hearing, the magistrate granted Appellee’s request for dismissal of the
charges. The Commonwealth timely filed a notice of appeal to the Court of
Common Pleas on August 31, 2016.
The trial court held a hearing on December 12, 2016. By order dated
December 12, 2016, and entered December 16, 2016, the trial court
affirmed the magistrate’s decision to dismiss the charges. The
Commonwealth timely filed a notice of appeal on January 6, 2017. On
January 12, 2017, the court ordered the Commonwealth to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
The Commonwealth timely complied on February 1, 2017.
The Commonwealth raises one issue for our review:
DID THE TRIAL COURT ERR IN AFFIRMING THE ORDER OF
THE MAGISTERIAL DISTRICT COURT DISMISSING THE
CHARGES AGAINST APPELLEE BY FINDING A VIOLATION
OF THE “5-DAY RULE” PURSUANT TO PA.R.CRIM.P.
519(B)(2), AND IN DENYING THE COMMONWEALTH’S
APPEAL OF SAME, WHERE APPELLEE FAILED TO OFFER OR
ESTABLISH THE REQUIRED PREJUDICE AND/OR
SUFFICIENT PREJUDICE TO WARRANT DISMISSAL OF THE
CRIMINAL CHARGES?
(Commonwealth’s Brief at 4).
The Commonwealth concedes it did not file charges against Appellee
until eighty-five days after his release from custody. Nevertheless, the
Commonwealth argues a violation of Rule 519(B)(2) is a defect in procedure,
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which does not require automatic dismissal of the charges. The
Commonwealth asserts Appellee failed to demonstrate prejudice warranting
dismissal. The Commonwealth maintains Appellee presented no evidence
that his ex-girlfriend was actually unavailable to testify, did not offer or
identify the content of her purported testimony, and failed to show how his
ex-girlfriend would assist him in his defense at trial. Even if Appellee’s ex-
girlfriend is hostile toward him, the Commonwealth insists Appellee could
have issued a subpoena compelling her testimony if necessary. The
Commonwealth submits its lack of justification for the untimely filing is
irrelevant to whether Appellee suffered prejudice. The Commonwealth
concludes this Court should vacate the order dismissing the charges,
reinstate the criminal complaint, and remand for a preliminary hearing so
the Commonwealth can present a prima facie case.
Appellee argues the Commonwealth violated Rule 519(B)(2) by failing
to file criminal charges against Appellee until eighty-five days after his
release from custody. Citing Commonwealth v. Schimelfenig, 522 A.2d
605 (Pa.Super. 1987), Appellee contends this Court expressly stated a delay
of fifty-five days “should not be tolerated.” Appellee maintains Rule 519 and
case law interpreting the Rule do not expressly define “prejudice.” Appellee
suggests the lengthy delay of eighty-five days in this case created
uncertainty regarding what charges Appellee faced (if any) and interfered
with his daily life. In addition, Appellee complains he lost his former
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girlfriend as a potential key witness. Appellee claims he does not know his
former girlfriend’s whereabouts, and she holds hostility toward him as a
result of their break-up. Appellee emphasizes that the Commonwealth had
no justification whatsoever for the lengthy delay. Appellee concludes he
demonstrated prejudice, and this Court should affirm the order dismissing
the charges against him.1
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Jeffrey L.
Finley, we conclude the Commonwealth’s issue merits no relief. The trial
court opinion fully discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed March 9, 2017, at unnumbered
pages 3-6) (finding: Commonwealth was required to file criminal complaint
against Appellee within five days of his release from custody;
Commonwealth did not file criminal complaint until eighty-five days after
Appellee’s release; Appellee presented evidence that he lost key witness
during eighty-five day period of delay; on night of his arrest, Appellee had
been drinking at his girlfriend’s home; had charges been filed promptly,
Appellee alleged his girlfriend would have been available to make statement
____________________________________________
1
Appellee further argues the Commonwealth was not permitted to file a
second appeal to the Court of Common Pleas following the remand hearing,
relying solely on Commonwealth v. Sebek, 716 A.2d 1266 (Pa.Super.
1998). Nevertheless, Sebek did not involve Rule 519 and is factually and
procedurally inapposite.
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to police or testify at preliminary hearing about Appellee’s alcohol
consumption that night, presumably to bolster Appellee’s claim that he
consumed only one or two drinks before driving home; Appellee and his
girlfriend have since parted, and Appellee insists he does not speak to her
anymore; Appellee said he does not know his ex-girlfriend’s whereabouts,
and she harbors animosity toward him that would prevent her from serving
as cooperative defense witness;2 additionally, Appellee did not submit to
chemical testing here so delay in obtaining laboratory results is not possible
excuse for Commonwealth’s delay in filing charges; Commonwealth
acknowledged that charges should have been filed sooner and provided no
explanation for lengthy delay; Appellee further claimed eighty-five day
passage of time is prejudicial on its own, particularly where Superior Court
has said delay of fifty-five days should not be tolerated; length of time here
certainly contributed to prejudice suffered by Appellee; due to delay,
Appellee was unaware of whether he would be charged and what charges
against him would be filed; this uncertainty interfered with his ability to live
and plan life; eighty-five day delay here, in conjunction with loss of key
witness and lack of justification for delay, established prejudice to warrant
dismissal of charges). Accordingly, we affirm on the basis of the trial court’s
____________________________________________
2
We depart from the trial court’s reasoning only to the extent that the court
speculated Appellee’s former girlfriend would have been “readily available
and willing” to testify in Appellee’s defense.
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opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/19/2017
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Circulated 06/28/2017 04:31 PM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA :
OPTIONAL
v. No. CP-09-MD-0002487-2016
CHRISTOPHER DAVID BOZARTH
OPINION
The Commonwealth of Pennsylvania ("Appellant") appeals this Court's December 12,
2016 Order affirming the August 23, 2016 Order of the Magisterial District Court, dismissing the
charges against Appellee due to a violation of Pennsylvania Rule of Criminal Procedure 519.
Pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), we file this Opinion in support of
the Court's ruling.
I. FACTUAL AND PROCEDURAL HISTORY
On August 13, 2015, Appellee was stopped by Corporal Andrew Harnett of the
Pennsylvania State Police on suspicion of driving under the influence. N.T. 12/15/15, p. 5.
When Corporal Harnett walked up to Appellee's vehicle, he observed that Appellee's eyes were
bloodshot and glassy. Id, p. 6. Further, Corporal Harnett noticed a strong odor of alcohol
emanating from the vehicle. Id. Appellee told Corporal Harnett that he was traveling home to
Philadelphia from his girlfriend's home in Croydon. Id., p. 8. Appellee relayed that he had one
or two drinks that night. Id
Corporal Harnett administered three field sobriety tests. N.T. 12/15/15, pp. 6, 7.
Appellee was unable to perform two of the three tests. Id., p. 7. Thereafter, Corporal Harnett
requested Appellee submit to a portable breath test. Id., p. 8. Although Appellee tried ,to submit
to the breath test, Corporal Harnett was unable to retrieve a reading. Id Corporal Harnett
testified that he believed Appellee did not understand the instructions regarding how to submit to
the test, resulting in an insufficient sample. Id. Corporal Harnett then requested Appellee submit
to chemical testing. Id. Appellee was transported to Lower Bucks Hospital for testing. Id., p. 9.
Although Appellee initially agreed to chemical testing, Appellee refused upon arriving to the
hospital. Id. Corporal Harnett then transported Appellee to the police station and released him
to the custody of a relative several hours later. Id., p. 12.
On November 6, 2015, the criminal complaint charging Appellee with driving under the
influence' was filed. On December 15, 2015, following Appellee's preliminary hearing,
Magisterial District Justice Joanne V. Kline dismissed the complaint against Appellee for
Appellant's failure to timely file charges pursuant to Pennsylvania Rule of Criminal Procedure
519. On January 13, 2016, Appellant filed a Notice of Appeal. On June 1, 2016, oral argument
was held. By order dated the same day, this Court remanded the case to Magisterial District
Justice Kline for an evidentiary hearing on whether Appellee was prejudiced by Appellant's
failure to file charges pursuant to Rule 519.
On August 23, 2016, Justice Kline again dismissed the complaint, finding that Appellee
was prejudiced by the delay in filing. Appellee's evidence of prejudice included the loss of a
defense witness, the lengthy passage of time before charges were filed and the lack of
justification for the delay. N. T, 8/23/16, pp. 6-7. On August 31, 2016, Appellant appealed the
second dismissal. Following oral argument held on December 12, 2016, this Court affirmed
Justice Kline's dismissal of the charges. On January 6, 2017, Appellant filed a Notice of Appeal
to the Superior Court.
75 Pa.C.S.A. § 3802(a)(1).
II. STATEMENT OF ERRORS COMPLAINED OF ON APPEAL
On February 1, 2017, in accordance with Pennsylvania Rule of
Appellate Procedure
set forth verbatim
1925(b), Appellant filed its Statement of Errors Complained of on Appeal,
herein:
1. This Honorable Court erred in affirming the Order of the Magisterial District
Court dismissing the charges against Appellee by finding a violation of
the "5 -day
rule" pursuant to Pa.R.Crim.P. 519(B)(2), and in denying the Commonwealth's
prejudice
appeal of same, where Appellee failed to offer or establish the required
and/or sufficient prejudice to warrant dismissal of the criminal charges?
III. DISCUSSION
who is
Pennsylvania Rule of Criminal Procedure 519 governs release of a defendant
be released from
arrested without a warrant. The Rule provides that a defendant shall promptly
the second degree or a
custody when the most serious offense charged is a misdemeanor of
misdemeanor of the first degree in cases arising under 75 Pa.C.S. § 3802, the defendant poses no
and the arresting
threat of immediate physical harm to another person or to himself or herself,
as required. See
officer has reasonable grounds to believe the defendant will appear
is released, the Rule
Pa.R.Crim.P. 519(B)(1). When these conditions are met and the defendant
days of the
further states that "a complaint shall be filed against the defendant within 5
defendant's release." Pa.R.Crim.P. 519(B)(2).
eighty-five
Appellee was released pursuant to Rule 519(B)(1)'s conditions. However,
for filing under Rule
days passed before charges were filed-eighty days beyond the timeframe
519(B)(2). A criminal complaint shall not be dismissed despite a violation
of the five-day rule
737 A.2d
unless the defendant is prejudiced by the delay. See Commonwealth v. Wolgemuth,
605, 614 (Pa. Super.
757, 760 (Pa. Super. Ct. 1999); Commonwealth v. Schimelfenig, 522 A.2d
(Pa. Super. Ct. 1985) and
Ct. 1987) (expressly overruling Commonwealth v. Press, 493 A.2d 705Commonwealth v. Revtai, 494 A.2d 399 (Pa. Super. Ct. 1985), which held that dismissal of
charges was mandated for a violation of the five-day limitation).
While Schimelfenig clarified that a delay beyond five days does not mandate dismissal
absent prejudice to the defendant, specific examples of prejudice were not discussed. Thus, there
is little guidance as to what constitutes sufficient prejudice to warrant dismissal. Despite this, we
are satisfied that dismissal was appropriate here because Appellee presented evidence that this
Court believes demonstrates prejudice.
First, Appellee presented evidence that he lost a key witness during the eighty-five day
period of delay. On the night of Appellee's arrest, he had been drinking at his girlfriend's home.
Appellee argued that his girlfriend would have been available to testify to Appellee's alcohol
consumption that night, presumably to bolster Appellee's claim of only having consumed one to
two drinks before driving home. However, between the date of arrest and the date the charges
were filed, Appellee and his girlfriend broke up. Appellee indicated that he no longer speaks to
her, he does not know her exact location and that she harbors animosity towards Appellee which
would prevent her from serving as a cooperative defense witness. While Appellee's ex -girlfriend
may be served with a subpoena compelling her to testify, had the charges been filed within five
days of Appellee's arrest, Appellee's then-girlfriend would have been readily available and
willing to testify in Appellee's defense.
Next, Appellee contended that there was no justification for the lengthy delay in filing
charges. Appellee argued that while Rule 519 violations are not uncommon, there is almost
always a viable explanation. Specifically, Appellee noted that obtaining lab results often leads to
a delay in filing charges. However, here, Appellee refused to submit to chemical testing and
therefore there were no lab results Appellant would have needed to file charges. There was
presumably nothing preventing the arresting officer from filing a complaint against Appellee
immediately following his release. Appellant even acknowledged that the charges should have
been filed sooner than they were without providing an explanation as to why there was such a
lengthy delay in doing so.
Finally, Appellee asserted that the length of delay itself was prejudicial. Appellee cited
to Schimelfenig as support for his argument that passage of time alone may be considered
prejudicial. While the Court in Schimelfenig noted that a fifty-five day delay "should not be
tolerated," Schimelfenig, 522 A.2d at 613, the Court follows that statement by noting that it is
their duty to avoid improper dismissals for mere procedural defects. See id. Accordingly, this
Court is not persuaded that passage of time alone is prejudicial. Nonetheless, we acknowledge
that the length of delay in this case, which was well beyond the fifty-five days that the
Schimelfenig Court deemed intolerable, is an example of an egregious violation of Pennsylvania
Rule of Criminal Procedure 519. Thus, the length of delay itself certainly contributed to
prejudice suffered by Appellee.
When there is a delay in filing charges, a defendant is unaware of whether he or she is
going to be charged and what the charges may be. As the length of delay grows, the defendant's
uncertainty also increases with each day that passes. This uncertainty interferes with one's
ability to live and plan their life. Thus, this Court finds that the eighty-five day delay in filing
charges, in conjunction with the loss of a key witness and the lack of justification for Appellant's
failure to timely file the charges in accordance with Rule 519, caused Appellee to suffer
prejudice. Accordingly, the Court properly dismissed the criminal complaint against Appellee.
IV. CONCLUSION
For the foregoing reasons, this Court perceives that the issues of which Appellant has
complained in this appeal are without merit.
BY THE COURT:
DATaltiLe. &Li/ -10/7
774
Copies sent to:
Karen A. Diaz, Esquire
District Attorney's Office
100 North Main Street
Doylestown, PA 18901
ATTORNEY FOR THE COMMONWEALTH
John J. Kerrigan, Jr., Esq.
174 Middletown Blvd.
Suite C-300
Langhorne, PA 19047
ATTORNEY FOR THE DEFENDANT
Z