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decided: September 19, 1973.


Appeals from judgment of sentence of Court of Common Pleas of Dauphin County, Nos. 677 and 678 of 1971, in case of Commonwealth of Pennsylvania v. Gregory Tyrone Brabham.


William H. Saye, Assistant Public Defender, for appellant.

Marion E. MacIntyre, Deputy District Attorney, with her LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Watkins, J. Wright, P. J. and Cercone, J., join in this dissenting opinion.

Author: Hoffman

[ 225 Pa. Super. Page 332]

Appellant contends that his indictment by a grand jury should have been quashed, as he was denied his right to a preliminary hearing.

On November 23, 1970, a robbery took place at the Penbrook Manor Cleaners in Harrisburg. A clerk employed by Penbrook identified the robber as the appellant. Appellant was subsequently located at the Lancaster County Prison where he was an inmate on an unrelated offense; a detainer was lodged against him. On February 26, 1971, the Grand Jury returned an indictment charging appellant with aggravated robbery. A Motion To Quash the bill of indictment, asserting lack of a preliminary hearing, was dismissed. Appellant was tried by a judge and jury on April 21, 1971, and found guilty as charged. Post-trial motions were denied, and appellant was sentenced to pay a fine of $50.00 and undergo imprisonment for a period of not less than seven and one-half years nor more than fifteen years. This appeal followed.

Preliminary hearings were unknown to the early common law. This mode of instituting a criminal proceeding

[ 225 Pa. Super. Page 333]

    is a creature of statute. Curiously, a preliminary hearing was originally used not as a means of protecting individuals arrested for a crime, but rather as an instrument to restrict the indiscriminate release of such persons. 3 Henry VII, Ch. III; 1 and 2 Philip and Mary, Ch. III; 2 and 3 Philip and Mary, Ch. X. See generally, Commonwealth v. O'Brien, 181 Pa. Superior Ct. 382, 124 A.2d 666 (1956). These statutes were incorporated into the common law of this Commonwealth. See 3 Binney's Report 616, 620 (1807).

Until 1915, the Pennsylvania Legislature passed no act dealing with preliminary hearings, though the case law reflected a judicial recognition of preliminary hearings as a "right" of every individual, save three exceptions.*fn1 By the Act of May 14, 1915, P. L. 499, 42 P.S. § 1080, the Legislature provided that "upon a preliminary hearing before a magistrate for the purpose of determining whether a person charged with any crime or misdemeanor against the laws, except murder, manslaughter, arson, rape, mayhem, sodomy, buggery, robbery, or burglary, ought to be committed for trial, the person accused, and all persons on behalf of the person accused, shall be heard if the person accused shall so demand."*fn2

[ 225 Pa. Super. Page 334]

Our Supreme Court construed 42 P.S. § 1080, supra, in Commonwealth v. Hoffman, 396 Pa. 491, 152 A.2d 726 (1959), holding that a defendant charged with indirect criminal contempt was entitled to a preliminary hearing. Chief Justice Jones delivered the majority opinion stating pp. 497-498: "The petitioners were entitled to a preliminary hearing to which they had a positive legal right. . . . In a case where the defendants are arrested for an indirect criminal contempt, it is clear that the Act of 1915, supra, requires a preliminary hearing, if the defendants so demand, at which they are entitled to testify if they choose so to do. . . . While there may be certain limited exceptions to this generally recognized procedure in criminal cases, it cannot reasonably be contended that any such exemption is applicable here.

"Since a preliminary hearing was denied Philip and Hoffman by the committing magistrate on the charge of criminal contempt, their commitment was void and of no legal effect. Consequently, the orders of the court below in connection therewith must be deemed vacated, the warrants quashed. . . ."

In order to remove any doubt as to the mandatory position of the preliminary hearing in our criminal process, our Supreme Court promulgated comprehensive rules of criminal procedure stating a firm and unequivocal judicial policy on the subject.

Rule 102 of the Rules of Criminal Procedure sets forth the methods by which a criminal proceeding may be instituted. Rules 116 and 118 require that after arrest the defendant be preliminarily arraigned without unnecessary delay. At this preliminary arraignment, the issuing authority, according to Rule 119, shall inform the defendant:

"(1) Of his right to secure counsel of his choice and his right to assigned counsel in ...

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