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decided: October 5, 1978.


Nos. 452 & 496 January Term, 1976, Appeal from Judgments of Sentence of April 19, 1976, of the Court of Common Pleas, Criminal, of Philadelphia, at Nos. 600 and 601 July Term, 1975


Lawrence Solomon, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, James Garrett, Asst. Dist. Atty., Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Eagen, C. J., and Roberts and Nix, JJ., concur in the result. Manderino, J., files a dissenting opinion.

Author: O'brien

[ 482 Pa. Page 11]


Appellant, Carlos A. Cartagena, was tried by a judge and jury and was convicted of voluntary manslaughter, possessing

[ 482 Pa. Page 12]

    instruments of crime, possessing a concealed weapon and possessing a prohibited offensive weapon. Post-verdict motions were denied and appellant was sentenced to three to ten years' imprisonment for the voluntary manslaughter conviction, with a concurrent one to two year term of imprisonment for the weapons convictions. This appeal followed.*fn1

The facts are as follows. On May 30, 1975, Steven Brocco, the victim, and Thomas D'Orio left a party they had attended and were walking along 7th Street in Philadelphia. At 7th and Kimball Streets, the pair encountered appellant and his wife, who were walking in the opposite direction on 7th Street. Appellant and the victim bumped shoulders as they passed each other. The two began wrestling and they fell into a window at 1021 South 7th Street, which broke upon impact. During the fight appellant pulled a knife and stabbed Brocco twice in the chest, causing his death.

Appellant first argues that the evidence is insufficient to sustain his conviction for voluntary manslaughter. We do not agree.

In Commonwealth v. Rose, 463 Pa. 264, 267-68, 344 A.2d 824, 826 (1975), we stated:

"The test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing the proper inferences favorable to the Commonwealth, the trier of fact could reasonably have found that all of the elements of the crime had been established beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. . . . The fact-finder is free to believe all, part, or none of the evidence." (Citations omitted.)

It is our task to review appellant's claim in light of this standard.

[ 482 Pa. Page 13]

At trial, appellant admitted stabbing the victim, but claimed that he did so in self-defense. He claimed that he stabbed Brocco only after the victim began kicking him. A Commonwealth witness testified, however, that the pair were merely wrestling when appellant pulled the knife and stabbed Brocco.

Reading the evidence in the light most favorable to the Commonwealth, the evidence is sufficient to sustain appellant's conviction for voluntary manslaughter. See Commonwealth v. Black, 474 Pa. 47, 376 A.2d 627 (1977); Commonwealth v. Andrews, 466 Pa. 418, 353 A.2d 424 (1976) and Commonwealth v. Cropper, 463 Pa. 529, 345 A.2d 645 (1975).

Appellant next claims that he was improperly rearrested after the charges were dismissed at the original preliminary hearing. Appellant argues that after the dismissal of charges, he may not be rearrested until a petition is submitted to a judge who must approve the rearrest. Appellant's claim is meritless.

The facts are as follows. Appellant was arrested on May 31, 1975. A preliminary hearing was held in the Municipal Court of Philadelphia on June 5, 1975. The court took the matter under advisement and after hearing argument, found that a prima facie case had not been established. The court ordered appellant discharged on June 13, 1975.

The Commonwealth then drew up another more detailed criminal complaint and another arrest warrant. These documents were presented to a judge of the Court of Common Pleas of Philadelphia who signed the documents on June 16, 1975. Appellant was rearrested, and following a preliminary hearing before another judge of the Court of Common Pleas of Philadelphia, appellant was held for trial on June 27, 1975.

Appellant cites Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975), to support his proposition that the Commonwealth must petition the court before rearrest following the dismissal of charges at a preliminary

[ 482 Pa. Page 14]

    hearing. We believe, however, that appellant has misread Hetherington. In that case, the defendant was held over on a variety of charges at a preliminary hearing. He then filed a "motion to quash" as to those charges with a judge of the Court of Common Pleas, who granted the motion. The Commonwealth attempted to rearrest the defendant by filing a petition before another judge of the Court of Common Pleas. The second judge denied the petition without a hearing, believing res judicata precluded him from reversing another judge of the same court. This court affirmed, but only because the "motion to quash" was actually a habeas corpus action, which decision was appealable. We held that the Commonwealth's failure to appeal the first judge's order precluded our consideration of the merits. Hetherington thus does not require a petition to be filed to rearrest after dismissal of charges at a preliminary hearing.

We did, however, state in Hetherington, supra, 460 Pa. at 21-22, 331 A.2d at 208:

"In Commonwealth ex rel. Maisenhelder v. Rundle, 414 Pa. 11, 15-16, 198 A.2d 565, 567 (1964), we described the function of a preliminary hearing under Pennsylvania law as:

'The primary reason for preliminary hearing is to protect an individual's right against unlawful arrest and detention. It seeks to prevent a person from being imprisoned or required to enter bail for a crime which was never committed, or for a crime with which there is no evidence of his connection. It is not a trial in any sense of the word. It does not purport or attempt to determine the guilt or innocence of the accused, nor is he required to speak, plead or offer testimony in defense.' (Citations omitted).

" A finding by a committing magistrate that the Commonwealth has failed to establish a prima facie case is not a final determination, such as an acquittal, and only entitles the accused to his liberty for the present, leaving him subject to rearrest. In McNair's Petition, 324 Pa. 48, 54, 187 A. 498, 501 (1936), we observed:

[ 482 Pa. Page 15]

'When the magistrate believes that probable cause to hold the defendant has not been proven, he may discharge him; . . . If the commonwealth deems itself aggrieved by his decision it may bring the matter again before any other officer empowered to hold preliminary hearings.' (Citations omitted).

"In Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969), we reaffirmed the view set forth in McNair's Petition, supra, and held that the principle applies also where the officer sitting as a committing magistrate is a judge of the Court of Common Pleas and the evidence presented at the second proceeding is identical to that offered in the first. Thus, it has been firmly established under our law that a determination by a committing magistrate that a prima facie case has not been proven is interlocutory in nature and therefore not appealable. Riggins Case, supra." (Emphasis added).

There was no error in rearresting appellant after dismissal of the charges at the first preliminary hearing.

Appellant also claims that he is entitled to discharge because the Commonwealth failed to pay the costs of prosecution after dismissal of the first complaint. In his brief, appellant quotes:

"Rule 141(d), Pa.R.Crim.P. states in part:

'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 cost by the original affiant, an issuing authority shall, upon application of the 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.'"

Appellant, however, has omitted the two sentences preceding the above-quoted portion, which state:

"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

[ 482 Pa. Page 16]

    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." Pa.R.Crim.P. 141(d). (Emphasis added).

In the instant case, the first prosecution was dismissed because of the failure to establish a prima facie case and not because of the lack of probable cause to institute the criminal proceedings. Appellant's argument is thus meritless.

Appellant next claims that his case was improperly submitted to the grand jury, thereby invalidating the instant indictments. The facts are as follows.

Appellant was held for court on June 27, 1975, when the district attorney notified all parties that:

"The defendant's case will be presented not less than ten days from today's date to the grand jury presently sitting, or the next grand jury. He has a right to challenge the array, of course, of that grand jury prior to the submission of these charges." (Emphasis added.)

The court then informed appellant that he could challenge the array of the grand jury and then mistakenly told appellant that "these charges will be presented within the next ten days to the grand jury that is then sitting."

Appellant on June 30, 1975, obtained a stay of all proceedings against him so that he could file a petition for a writ of habeas corpus. The stay remained in effect until July 10, 1975, when the petition for a writ of habeas corpus was denied. Appellant's case was submitted to the grand jury on July 15, 1975, eighteen days after appellant was held for court.

Appellant's argument is two-fold. He first argues that the court mistakenly told him his case would be submitted to the grand jury within ten days, and thus, he did not receive proper notice of his case's submission to the grand jury. At

[ 482 Pa. Page 17]

    the time this case was submitted, Pa.R.Crim.P. 203(c) provided:*fn2

"(c) A bill of indictment shall not be submitted to a grand jury for action until 10 days after a defendant is held for court unless he consents to an earlier submission and the Commonwealth agrees thereto, or the court, for cause, permits an earlier submission."

While the trial court's statement was in error, we fail to see how appellant was in any way prejudiced. First, appellant was given proper notice by the district attorney. Second, and even more important, appellant, under the law in ...

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