Nos. 284-285, 294-295 January Term, 1977, Appeal from the Orders of the Court of Common Pleas, Philadelphia County, Trial Division, Criminal Section as of M.C. 76-10-137
Edward G. Rendell, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Philadelphia, for appellant.
Joseph C. Santaguida, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy and Nix, JJ., dissent believing that a prima facie case was made out.
Appellee, Anthony Prado, was arrested on charges of criminal homicide, murder, possessing an instrument of crime and possessing a prohibited offensive weapon. Following a preliminary hearing before the Municipal Court of Philadelphia, appellee was discharged for lack of a prima facie case. One month later, the Administrative Judge of the Court of Common Pleas issued a rearrest warrant. Appellee was again discharged when, after a second preliminary hearing, a Judge of the Court of Common Pleas also found no prima facie case. Subsequently, the prosecution filed yet another Petition to Rearrest. No additional evidence was presented, and that petition was denied. The prosecution now appeals the orders entered by the Court of Common Pleas discharging appellee and denying the prosecution's latest Petition to Rearrest.
Ordinarily, orders such as the ones before us are not appealable since the individual is subject to rearrest. We have long held that the conclusion by a committing magistrate that the prosecution has failed to establish a prima facie case is not a final determination of guilt such as an acquittal. The prosecution may bring the matter again before any other officer empowered to hold a preliminary hearing. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975); McNair's Petition, 324 Pa. 49, 187 A. 498 (1936). This position was reaffirmed and held applicable when the committing magistrate is a judge of the Court of Common Pleas. Riggins Case, 435 Pa. 321, 254 A.2d 616 (1969). In Commonwealth v. Hetherington, supra, we stated:
"[W]here . . . no additional evidence was to be presented in the subsequent proceeding we cannot say that a judge who refuses to entertain a petition for rearrest has abused her discretion. This does not preclude the Commonwealth from seeking a review by another judicial officer, empowered to hold preliminary hearings . . . ." 460 Pa. at 22-23, 331 A.2d at 208.
These cases remain viable precedent. They are, however, inapplicable in this case. Because of the procedural aspects of this case, we believe that the orders of the lower court are appealable.
Local Philadelphia Criminal Rules provide that rearrest petitions and preliminary hearings in homicide cases are to be assigned to the Motion Court ...