Opinion
J-A17004-17 No. 224 EDA 2017
07-19-2017
COMMONWEALTH OF PENNSYLVANIA Appellant v. CHRISTOPHER DAVID BOZARTH Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Retired Senior Judge assigned to the Superior Court.
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 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 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, 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 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.
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.
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 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; 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 opinion.
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. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/19/2017
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