Milton O. Moss, Dist. Atty., Stewart J. Greenleaf, Richard J. Hodgson, Asst. Dist. Attys., Norristown, for petitioner.
Jean B. Green, Donald J. Martin, Norristown, for respondent.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., concurs in the result.
The district attorney of Montgomery County has filed a petition in this Court requesting the issuance of a Writ of Prohibition directed to the Honorable Richard S. Lowe,*fn1 a Judge of the Court of Common Pleas of Montgomery
County.*fn2 The following events gave rise to the filing of the petition.
Following the untimely death of one Thomas Mignogno in Montgomery County, Thomas Mullen was arrested on charges of criminal homicide and aggravated assault. At the preliminary hearing before the district justice, the Commonwealth's evidence against Mullen consisted of the testimony of a single witness, one Steven Muller. He stated that while he, Mignogno and others were seated in an automobile standing in the parking lot of the Abington High School, Mullen began striking the windshield of the vehicle with a bumper jack; that the bumper jack pierced the windshield, entered the vehicle and struck Mignogno on the head causing fatal injury. At the conclusion of the Commonwealth's evidence, the accused, Mullen, proceeded to call as witnesses the police officer who was the prosecutor, or complainant, plus other individuals who witnessed the circumstances surrounding Mignogno's death. The district attorney objected to these witnesses giving testimony at this time on the ground they were prospective witnesses for the Commonwealth at the trial of the case. The objection was sustained by the district justice. Mullen was then held for the grand jury without bail.
Mullen subsequently filed a petition for a writ of habeas corpus in the Court of Common Pleas of Montgomery County. In this action, Mullen challenged: (1) the sufficiency of the evidence before the district justice to
warrant holding him for criminal homicide; and (2) the legality of the hearing before the district justice in view of that officer's ruling denying him the opportunity of introducing the testimony of eyewitnesses to the incident out of which the criminal charges arose. After an evidentiary hearing before Judge Lowe, the legal issues were referred to a court en banc for decision. Oral argument before a three-judge court, which included Judge Lowe, followed.
Subsequently, the court en banc, through Judge Lowe, entered an order remanding the case to the district justice "for a preliminary hearing de novo, which hearing shall be held in accordance with Pennsylvania Rules of Criminal Procedure, specifically Rule 141 thereof and that the defendant shall have the right to call any witnesses in his behalf excepting only witnesses to his good reputation." The ...