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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


                                      -2-
J-A17004-17


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,


                                      -3-
J-A17004-17


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


                                       -4-
J-A17004-17


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.



                                           -5-
J-A17004-17


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.



                                           -6-
J-A17004-17


opinion.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2017




                          -7-
                                                                                    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 705
Commonwealth 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
