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decided: March 31, 1977.


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.

Author: Jacobs

[ 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 from the same criminal episode." Id., 232 Pa. Super. at 550, 334 A.2d at 743.

Such a conclusion is buttressed by the fact that there is no constitutional right to a preliminary hearing in Pennsylvania. See Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974) and cases cited therein.

Commonwealth v. Campana, supra, also does not help the appellee. Campana held that where multiple criminal offenses arise from the same episode or transaction, all the offenses must be tried in one prosecution. Campana bars successive trials. It does not bar successive preliminary proceedings which are not in fact trials. Commonwealth v. Smith, supra, 232 Pa. Super. at 549, 334 A.2d at 743.

Appellant finally contends, however, that the order of the lower court should be affirmed because there has been no showing on the record that the affiant has complied with the cost provisions of Pa.R.Crim.P. 141(d). That section provides:

"(d) If a prima facie case of the defendant's guilt is not established at the preliminary hearing, and no application for continuance, supported by reasonable grounds, is made by an interested person, and no reason for a continuance otherwise appears, the issuing authority shall discharge the defendant; and if he finds that the prosecution was brought without probable cause, the issuing authority shall order affiant to pay the cost of the prosecution. No further proceedings may be had before any issuing authority on the same cause until the affiant in the original proceeding has repaid the costs. When a defendant has been discharged as herein provided and is thereafter arrested or summoned before an issuing authority on the same cause without the payment of costs by the original affiant, an issuing authority shall, upon application of the

[ 247 Pa. Super. Page 46]

    defendant and upon being satisfied that the subsequent proceeding is substantially on the same cause involved in the first action, by whatever name it may be called, discharge the defendant." (Emphasis added.)

We are unable to rule on this contention because the record is inconclusive on this point. The case is therefore remanded for a determination as to whether the affiant paid the costs as provided by Rule 141(d). If he did, then the order of the lower court is reversed. If it is concluded that Rule 141(d) was not complied with, in that the costs were not paid prior to the second preliminary hearing, then the order of the lower court is affirmed, not because of any double jeopardy or Campana violation, but because of non-compliance with Rule 141(d).

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