Appeal from Order of Dismissal entered March 17, 1976, in the Court of Common Pleas, Criminal Division, of Westmoreland County, at No. 600 April Term, 1976. No. 664 April Term, 1976.
John J. Driscoll, Assistant District Attorney, and Albert M. Nichols, District Attorney, Greensburg, for appellant.
Bernard F. Scherer, Latrobe, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, President Judge, and Price, J., concur in the result.
[ 247 Pa. Super. Page 43]
This is an appeal by the Commonwealth from the order of the lower court dismissing the charge of driving while under the influence of an intoxicating liquor. The issue presented for our determination is whether the Commonwealth is barred by the Fifth Amendment of the United States Constitution or Commonwealth v. Campana,*fn1 from bringing the same charge against a defendant following a dismissal of that charge at a prior preliminary hearing for failure to establish a prima facie case. We hold that the Commonwealth is not barred from refiling the same charge and initiating a second preliminary hearing and, therefore, reverse the order of the lower court.
On November 21, 1975, the Commonwealth filed a criminal complaint alleging that the appellee was guilty of driving while under the influence of an intoxicating liquor, a misdemeanor.*fn2 At the first preliminary hearing on November 28, 1975, the charges were dismissed by the magistrate who ruled that the Commonwealth had failed to establish a prima facie case in that it had failed to place the appellee as the driver of the vehicle. Thereafter, on December 11, 1975, the Commonwealth refiled the charges before a different magistrate, who, on February 4, 1976, ruled that the Commonwealth had, through the use of additional witnesses, established a prima facie case. The appellee filed petitions to suppress evidence and to quash the information on the basis that his Fifth Amendment right against double jeopardy had been violated by the second preliminary hearing. The lower court agreed on the basis of Commonwealth v. Campana, supra, and granted the petition. This appeal by the Commonwealth followed.
A preliminary hearing in our Commonwealth is not a trial and its purpose is not to decide guilt or innocence; but rather to determine whether a prima facie case has been
[ 247 Pa. Super. Page 44]
made out which is legally sufficient to hold the accused for the grand jury. Commonwealth ex rel. White v. Myers, 419 Pa. 244, 213 A.2d 662 (1965); Commonwealth v. Smith, 232 Pa. Super. 546, 334 A.2d 741 (1975). Moreover, the United States Supreme Court recently stated in Serfass v. U.S., 420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265 (1975), that double jeopardy does not attach in a jury trial until a jury is empaneled and sworn or until the court begins to hear evidence in a non-jury case. See, U.S. v. Pecora, 484 F.2d 1289 (3rd Cir. 1973); Commonwealth v. Stewart, 456 Pa. 447, 317 A.2d 616, cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974); Commonwealth v. Smith, supra; Commonwealth v. Culpepper, 221 Pa. Super. 472, 293 A.2d 122 (1972). Clearly, under the facts of this case the Fifth Amendment proscription against double jeopardy had yet to attach.
Recently, in Commonwealth v. Smith, supra, our Court held that a plea of former jeopardy cannot be predicated on the action of an issuing authority at a preliminary hearing.*fn3 In that case, charges of receiving stolen property had been dismissed after a preliminary hearing because of the failure of the Commonwealth to establish a prima facie case. The Commonwealth thereupon filed different charges against the defendants, charging them as accessories after the fact. We held that double jeopardy did not bar the subsequent action. We reject the appellant's contention that Smith impliedly held that the same charge could not be refiled by the Commonwealth. To the contrary, we said in Smith :
[ 247 Pa. Super. Page 45]
"[S]o long as the costs have been paid by the affiant, the Commonwealth can recharge an accused before an issuing authority on the same cause. Obviously, if the Commonwealth is free to recharge on the same accusation, it can certainly institute proceedings on a different charge arising ...