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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-A02037-15



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.



                                           -2-
J-A02037-15



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

                                     -3-
J-A02037-15


      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,



                                     -4-
J-A02037-15



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


____________________________________________


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.”



                                           -5-
J-A02037-15



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

                                        -6-
J-A02037-15



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

                                      -7-
J-A02037-15



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).

                                     -8-
J-A02037-15



       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.

____________________________________________


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.



                                           -9-
J-A02037-15



     Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2015




                                 - 10 -
