Com. v. Mumich

• Decision Date: 29 March 1976
• Parties: COMMONWEALTH of Pennsylvania v. Andrew J. MUMICH, Appellant.
• Court: Pennsylvania Superior Court

Page 359

361 A.2d 359

239 Pa.Super. 209

COMMONWEALTH of Pennsylvania v. Andrew J. MUMICH, Appellant.

Superior Court of Pennsylvania.

March 29, 1976.

Petition For Allocatur Denied July 2, 1976.

Thomas M. Reese, Martinsburg, for appellant.

Edward S. Newlin, Asst. Dist. Atty., Hollidaysburg, for appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

JACOBS, Judge:

Appellant, Andrew Mumich, was charged with fornication and bastardy under the old Penal Code. ¹ He was found guilty following a non-jury trial and sentenced to pay the costs of prosecution as well as $15.00 a week commencing with the birth of the child.

The only issue raised on appeal is whether appellant was denied his right to a prompt trial under Pa.R.Crim.P. 1100. The first criminal complaint in this case was executed by the prosecutrix on October 9, 1973. At appellant's preliminary arraignment, however, on May 18, 1974, Magistrate Denver K. Ake dismissed the complaint and discharged appellant on the basis that the signature of the prosecutrix-affiant did not appear on the defendant's copy of the complaint. Within a month, on June 20, 1974, a second complaint was filed by the prosecutrix before a Magistrate Miller. Prior to trial a motion was filed by appellant to dismiss the indictment because trial had not commenced within 270 days from the filing of the First complaint on October 9, 1973. The court below conducted a hearing and found no violation of Rule 1100 because it computed the 270 days to run from the filing of the New complaint on June 20, 1974. Trial was held on January 30, 1975, well within the 270-day limit from the date of the new complaint.

The Rules of Criminal Procedure provide that at the preliminary arraignment the magistrate shall deliver a copy of the complaint to the defendant. Pa.R.Crim.P. 140. Yet Rule 132 dictates that the complaint Shall contain the signature of the affiant. Rule 150 sets forth the procedure to be followed when defects are found in a complaint.

'Rule 150. Defects in Complaint, Citation, Summons or Warrant

(a) Informal Defects:

No person arrested under a warrant or appearing in response to a summons or citation shall be discharged from custody nor shall any case be dismissed because of any informal defects in the complaint, citation, summons, or warrant, but the complaint, citation, summons or warrant, may be amended at any time so as to remedy any such informality.

(b) Substantive Defects:

If a complaint, citation, summons or warrant contains a substantive defect, the defendant shall be discharged unless he waives the defect. Nothing in this rule shall prevent the filing of a new complaint or citation and the issuance of process in which the defect is corrected in a proper manner.

Rules 114 and 115 adopted Jan. 31, 1970, effective May 1, 1970; renumbered as Rule 150 and amended Sept. 18, 1973, effective Jan. 1, 1974.'

There is little authority as to what constitutes an 'informal' defect as opposed to a 'substantive' defect and it might well be argued that the defect in the complaint in the present case was informal rather than substantive. In that situation, the complaint could have been amended to remedy the defect and there was no need to discharge appellant if the defect was merely informal. However, the record fails to show any objection by appellant or his attorney to the dismissing of the complaint because of the defect. We interpret this as an acquiescence in the procedure employed by the magistrate. Under those circumstances, the appellant may not now change directions and attempt to take advantage of a ruling he in no way opposed. Cf. Commonwealth v. Hickson, 235 Pa.Super. 496, 344 A.2d 617 (1975). Perhaps appellant was content with the dismissal of the charges and envisioned an amicable settlement of the matter, without resort to criminal prosecution. However, we are an appellate court and should confine our attention to the record developed in the lower court without speculation as to what probably happened. Moreover, the record does not reflect any impropriety by the district attorney's office in this case to avoid the mandate of Rule 1100. In fact, the record indicates that the prosecutrix was represented by a private attorney and Not the district attorney's office at this stage of the proceedings which would not be uncommon in a bastardy case.

Under these circumstances, especially where no objection was voiced, we are satisfied that the magistrate acted within his discretion in dismissing the complaint and discharging appellant. According to Rule 150(b) there is nothing improper with filing a new complaint. We read Rule 1100 on prompt trial as applying to complaints properly filed and not to defective complaints that are dismissed. Therefore, we conclude that trial commenced in the present case within the time limits set forth by Rule 1100.

Judgment affirmed.

SPAETH, J., files a dissenting opinion.

SPAETH, Judge (dissenting):

Whether a speedy trial was denied depends on whether the 270 day period is computed from the date of the filing of the first complaint, or of the second.

The majority computes the period from the date of the filing of...