No. 2238 October Term, 1978, Appeal from the Order of the Court of Common Pleas, Criminal Division, County of Montgomery, at No. 2220-78.
John J. Burfete, Jr., Assistant District Attorney, Norristown, for Commonwealth, appellant.
Michael D. Marino, Norristown, for appellee.
Cercone, President Judge, and Watkins and Hoffman, JJ.
[ 268 Pa. Super. Page 385]
Appellant, the Commonwealth, contends that the trial court improperly granted appellee's "Motion to Quash the Transcript" following a preliminary hearing at which the district justice found that the Commonwealth had made out a prima facie case against appellee. We disagree and, accordingly, affirm.
Appellee was arrested and charged with robbery, theft by unlawful taking, receiving stolen property, criminal conspiracy, terroristic threats and prohibited offensive weapons. On June 1, 1978, the district justice held a preliminary hearing, after which he found that the Commonwealth had established a prima facie case against appellee on each of the charges. Appellee was released on $50,000.00 bail. Appellee then timely filed in the Court of Common Pleas a petition captioned a "Motion to Quash the Transcript of the District Justice," by which he sought, inter alia, to challenge the district justice's finding. Following argument, the Court of Common Pleas, on July 24, 1978, determined that the Commonwealth had not established a prima facie case, granted the motion and directed that the transcript be quashed. The issues in this appeal are whether appellee, on
[ 268 Pa. Super. Page 386]
bail before trial, could attack the alleged error at the preliminary hearing and, if so, he could properly do so by means of the "Motion to Quash the Transcript." We conclude that appellee could challenge the finding of a prima facie case by timely filing the motion.
The proper means for testing the validity of a district justice's determination is for an accused in custody to file a writ of habeas corpus. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975). The Commonwealth argues that, once on bail, appellee could neither avail himself of the writ nor otherwise allege error at the preliminary hearing. In Commonwealth v. Weinstein, 177 Pa. Super. 1, 109 A.2d 235 (1954), this Court held that a petitioner on bail while awaiting indictment and trial was not in custody and, therefore, could not, before trial, raise allegations that the Commonwealth had failed to make out a prima facie case at the preliminary hearing. Accord, Commonwealth v. Smith, 212 Pa. Super. 403, 244 A.2d 787 (1968); Commonwealth v. Hunsicker, 189 Pa. Super. 63, 149 A.2d 584 (1959). Commonwealth v. Gordon, 254 Pa. Super. 267, 385 A.2d 1013 (1978), recently repeated the holding of Weinstein in dictum.
The crux of the question is whether an accused on bail is "in custody" for purposes of obtaining relief through recourse to the writ of habeas corpus. A writ of habeas corpus is available only where the petitioner is in "custody." Commonwealth ex rel. Paulinski v. Isaac, 483 Pa. 467, 397 A.2d 760 (1979); accord, McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1933); United States ex rel. Dessus v. Commonwealth of Pennsylvania, 452 F.2d 557 (3rd Cir. 1971), cert. denied sub nom. Dessus v. Pennsylvania, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d 96 (1972). Weinstein held 25 years ago that a petitioner on bail was not "in custody" for purposes of habeas corpus. Since then, however, the United States Supreme Court and our Supreme Court have made clear that one on bail is "in custody" for purposes of habeas corpus.
[ 268 Pa. Super. Page 387]
In Hensley v. Municipal Court, 411 U.S. 345, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973), the Court held that an accused released on his own recognizance pending execution of sentence was "in custody" for purposes of federal habeas corpus because he was subject to restraints on liberty not shared by the public generally. In dictum, the Court announced that bail imposed restraints of a similar nature. Following Hensley, the Court held that a petitioner on bail is "in custody" and may obtain relief through a writ of habeas corpus otherwise available. Lefkowitz v. Newsome, 420 U.S. 283, 95 S.Ct. 886, 43 L.Ed.2d 196 (1975), overruled on other grounds, Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); accord, United States ex rel. Scranton v. State of New York, 532 F.2d 292 (2d Cir. 1976); United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420 (3rd Cir. 1975); Palmore v. Superior Court of District of Columbia, 169 U.S.App.D.C. 323, 515 F.2d 1294 ...