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COMMONWEALTH PENNSYLVANIA EX REL. F. EMMETT FITZPATRICK v. HONORABLE CHARLES P. MIRARCHI (10/05/78)

decided: October 5, 1978.

COMMONWEALTH OF PENNSYLVANIA EX REL. F. EMMETT FITZPATRICK, DISTRICT ATTORNEY OF PHILADELPHIA COUNTY
v.
HONORABLE CHARLES P. MIRARCHI, JR., ADMINISTRATIVE JUDGE, TRIAL DIVISION, COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY



No. 458 Miscellaneous Docket No. 21

COUNSEL

Steven H. Goldblatt, Deputy Dist. Atty., W. Mark Sendrow, Asst. Dist. Atty., Chief, Motions Unit, Philadelphia, for petitioner.

Gordon J. Scopinich, Philadelphia, for respondent, Charles P. Mirarchi.

Vincent J. Fumo, Philadelphia, for respondent, Charles Berman.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ.

Author: Eagen

[ 481 Pa. Page 388]

OPINION

This matter involves a petition for Writ of Prohibition filed in this Court on October 17, 1977, by the District Attorney of Philadelphia to prohibit the Honorable Charles P. Mirarchi, Jr., Administrative Judge of the Trial Division of the Court of Common Pleas of Philadelphia, from ordering or conducting a preliminary hearing in the case of Commonwealth v. Charles Berman, Municipal Court Transcript No. 77-10-449. We have reviewed the matter and deny the petition.

Charles Berman is charged with various offenses under the Election Code and Crimes Code, none of which carries a penalty of more than five years. Thus, the Municipal Court of Philadelphia has jurisdiction to try the charges in the first instance. Act of October 17, 1969, P.L. 259 § 18, as amended, Act of July 14, 1971, P.L. 224, No. 45, § 1, 17 P.S. § 711.18. See also Pa.R.Crim.P. 6001, 6003.

Prosecution of Berman was commenced on October 4, 1977, by the filing of a complaint charging him with perjury, fraudulent registration, falsification of certificates, unlawful voting, false swearing, and unsworn falsification. Following his arrest pursuant to a warrant, Berman filed a petition for a Writ of Habeas Corpus with the Criminal Motions Court of the Court of Common Pleas to which Judge Mirarchi was then assigned. On October 5, 1977, before preliminary arraignment on the charges, Judge Mirarchi scheduled a hearing on the habeas corpus petition at which time the district attorney requested permission to amend the complaint by adding a charge of tampering with records. Judge Mirarchi denied the request to amend, granted Berman's habeas corpus petition, dismissed the complaint, and discharged Berman on the basis that the complaint contained a substantive defect which could not be remedied by amending it. See Pa.R.Crim.P. 150.*fn1

[ 481 Pa. Page 389]

Subsequently, the district attorney submitted a re-arrest complaint to Judge Mirarchi who continued to sit as the Criminal Motions Court Judge.*fn2 The second complaint alleged the charge of tampering with records, which was not alleged in the initial complaint. On the basis of the new complaint, Judge Mirarchi found the existence of probable cause and issued a warrant for Berman's re-arrest.

On October 6, 1977, Berman was preliminarily arraigned before Judge Mirarchi. At that time Judge Mirarchi scheduled a preliminary hearing in the matter before himself for October 13, 1977. The district attorney objected to conducting a preliminary hearing in the case, claiming that Berman is not entitled to a hearing on charges triable in the first instance in the Municipal Court and that the Court of Common Pleas has no authority to order a preliminary hearing in a Municipal Court case. On the date set for the hearing, Judge Mirarchi heard argument on the question and ruled that Rule 500(H) of the Rules of Criminal Procedure of the Court of Common Pleas of Philadelphia required him to conduct a preliminary hearing in the ...


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