# Commonwealth v. Schimelfenig

> Supreme Court of Pennsylvania · March 6, 1987 · 361 Pa. Super. 325

URL: https://www.frixlaw.com/law-library/cases/9705030

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellant, v. Kerry SCHIMELFENIG, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Thomas W. HALL, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. James MARTIN, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. David EVANS, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Bruce T. BEVELACQUA, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Vernon Dale HALL, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. William HOBAN, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. David v. KOHUT, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Duane ROBBINS, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Richard WILSON, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Thomas MERRIGAN, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Eugene CURTIS, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. James W. ROONEY, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. Paul BREZA, Appellee; COMMONWEALTH of Pennsylvania, Appellant, v. William KIRK, Appellee
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 6, 1987
- **Citations:** 361 Pa. Super. 325; 522 A.2d 605
- **Precedential status:** Published
- **Opinion:** Concurrence by Montemuro
- **Judges:** Cirillo, Wickersham, Brosky, McEwen, Olszewski, Montemuro, Beck, Kelly, Johnson
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705030

## Opinion text

MONTEMURO, Judge,
concurring:
I join the majority since, as is correctly pointed out, no reliable basis for the Revtai and Press holding is provided either by the principles of statutory construction, or by the *342 history of procedural development. I would, however, add that the internal logic of the Rules here under consideration dictates the same conclusion.
Operation of Section (b) of Rule 130 is [a] condition precedent to the operation of Section (d). Section (b) is permissive in character and entirely dependent upon the discretion of the arresting officer for its implementation. Therefore, theoretically at least, Section (d) need never be activated. In contrast, Rule 150 represents a fixed and stated policy which is always in force, and which may be overcome only by substantial impairment of a defendant’s rights in conjunction with his prompt recognition and reportage of the violation. For such a rule to be eclipsed, more is necessary than a defendant’s disappointed expectations in a time limitation. Again, real prejudice must have occurred and been shown at the proper time.
All of this having been said, it becomes apparent that dismissal is a totally disproportionate remedy for a Rule 130(d) violation. In this regard, a comparison of the redress accorded to infringements of the other criminal procedural rules is instructive.
In Commonwealth v. Mason, 507 Pa. 396 , 490 A.2d 421 (1985), our supreme court was faced with the question of whether violations of the procedural rules governing issuance and execution of search warrants need necessarily be counteracted by exclusion of the evidence seized. The answer was that where “the [rule] violation also implicates fundamental constitutional concerns, is conducted in bad faith or has substantially prejudiced the defendant ... exclusion may be an appropriate remedy.” Id., 507 Pa. at 405 , 490 A.2d 426 (emphasis in original).
The standard used by the Mason court provides a clear analogue to the very language of Rule 150. If exclusion is too harsh an antidote for violation of Chapter 2000 Rules, no quantum leap is required to conclude that dismissal is not automatically a proper curative for Chapter 100 infractions.
*343 In Commonwealth v. Peppers, 357 Pa.Super. 270 , 515 A.2d 971 (1986), this court most tellingly held that the (proposed) suppression of evidence obtained as the result of an extraterritorial arrest, “would be a remedy all out of proportion to the benefits gained to the end of obtaining justice while preserving individual liberties unimpaired.” Id., 357 Pa.Superior Ct. at 273, 515 A.2d 973 (citations omitted). The same is true here.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705030. Public record. Not legal advice.