decided: November 28, 1967.
COMMONWEALTH EX REL. BITTNER, APPELLANT,
Appeal from order of Court of Common Pleas of Allegheny County, July T., 1966, No. 3541, in case of Commonwealth ex rel. Edward Bittner v. Grant Price, Warden.
Alan Frank, for appellant.
Edwin J. Martin, Assistant District Attorney, with him Robert W. Duggan, District Attorney, for appellee.
Bell, C. J., Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Mr. Justice Musmanno took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Roberts.
Author: Per Curiam
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The appellant, Edward Bittner, following a coroner's inquest, was held on the charge of murder pending action by the grand jury. An action in habeas corpus was instituted which the lower court dismissed. Subsequently, Bittner was indicted by the grand jury for
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murder and involuntary manslaughter. Later, this appeal was filed from the order below dismissing the habeas corpus action.
We need not reach the question of whether or not the indictments returned by the grand jury rendered the issues raised by this appeal moot, since the appeal is from an unappealable order and must be quashed.
The appellant does not seek release on bail and under such circumstances the pretrial order refusing a writ of habeas corpus is interlocutory, from which, absent exceptional circumstances, an appeal does not lie. Cf. Commonwealth v. Pollick, 420 Pa. 61, 215 A.2d 904 (1966), and Commonwealth ex rel. Fisher v. Stitzel, 418 Pa. 356, 211 A.2d 457 (1965).
Concurring Opinion by Mr. Justice Roberts:
I do not agree that an appeal from the denial of a habeas corpus petition is interlocutory and therefore must be quashed. The result of such a doctrine would be to render unappealable all challenges to the legality of pretrial detention. However, I do believe that Bittner's present incarceration is lawful and thus would affirm the denial of the writ on this basis, rather than quash this appeal.
The function of a writ of habeas corpus is to test the legality of the prisoner's detention. See Fay v. Noia, 372 U.S. 391, 399-420, 83 S. Ct. 822, 827-38 (1963); Commonwealth ex rel. Levine v. Fair, 394 Pa. 262, 146 A.2d 834 (1958). The grand jury, finding that there were "probable grounds" to hold Bittner for trial, has indicted the prisoner. See Laub, Pennsylvania Trial Guide § 604, at 202 (1959). Appellant's present pretrial detention pursuant to the true bill returned
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by the grand jury is therefore legal and the propriety of the denial of the writ is moot.
*fn1 The record below leaves unclear whether the court sustained the objections on the merits or merely held that it would not consider the objections in the context of a habeas corpus proceeding.
*fn2 Appellant also asserts that he was denied effective assistance of counsel at his preliminary hearing (in this case, the coroner's inquest). If this inquest can properly be classified as a critical stage, this complaint can be voiced in an appeal from conviction.