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decided: May 30, 1980.


No. 250 January Term, 1977, Appeal from the Order of November 24, 1976, of the Court of Common Pleas of Lancaster County at No. 1773 of 1976 and certified from the Superior Court at No. 644, October Term, 1977


Richard A. Sprague, Pamela W. Higgins, Philadelphia, for appellant.

Joseph C. Madenspacher, Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix,*fn* Manderino, Larsen and Flaherty, JJ. Manderino, J., did not participate in the decision of this case. Roberts, J., filed a concurring opinion in which Larsen, J., joined.

Author: Nix

[ 489 Pa. Page 583]


On April 29, 1976, a criminal complaint was issued in Lancaster County charging Terry L. Hess with perjury. The perjury was alleged to have occurred during testimony of Mr. Hess in the case of Commonwealth v. Haefner,*fn1 Nos. 3218-20 of 1975, also occurring in Lancaster County. This first complaint was quashed by order of the Court of Common Pleas of Lancaster County because of a substantive defect. A second complaint charging the same crime was voluntarily withdrawn by the District Attorney. A third complaint was filed, again charging the same crime, and a preliminary hearing was held thereon on August 27, 1976 before a district justice, following which appellant Hess was held for court.

On August 31, 1976, four days after the preliminary hearing, an information was filed by the District Attorney charging Hess with perjury. Thereafter, on September 10, 1976 among other pre-trial motions, a Petition to Quash Information, Return of Transcript, Complaint and to Declare Preliminary Hearing Null and Void was filed on Mr. Hess' behalf. Following the submission of briefs and argument by the parties, a judge of the Court of Common Pleas on November 24, 1976 dismissed the petition. The basis of the dismissal was that one admitted to bail cannot be heard to complain of the inadequacies of the evidence offered during the preliminary hearing. Further, the Court of Common Pleas denied appellant's request to certify the matter for appeal pursuant to the Appellate Jurisdiction Act, Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 501(b), formerly found at 17 P.S. § 211.501(b). Appellant filed an appeal to the Superior Court challenging the November 24 order. The District Attorney filed a motion to quash the appeal, contending that the November 24 order was interlocutory and not appealable. The Superior Court subsequently certified

[ 489 Pa. Page 584]

    the appeal to this Court for consideration and determination. Implicit in the Superior Court's certification was its uncertainty as to the proper disposition of the motion to quash.

The underlying question raised in this appeal is the feasibility of permitting the trial process to be interpreted for the purpose of providing immediate review of the denial of a claim of the nature raised herein. The answer to this question will turn upon the nature of the right being asserted. See, e. g., Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). Complexity is added to the issue presented by virtue of the Common Pleas Court's refusal to address the merits of the question presented to it. If we were to limit our conclusion to the view that consideration at this juncture was inappropriate for a reason other than that decided by the court below, then we would leave unanswered whether the initial request for consideration before the Court of Common Pleas was properly refused. In view of the apparent uncertainty in this area and its importance to our jurisprudence, we will attempt to answer both questions, to wit: whether appellant is entitled to review at either or both levels. An additional reason for examining the validity of the lower court's conclusion, i. e., the underlying merit of the claim raised by appellant was not cognizable at that stage, is that if correct it would necessarily follow that there would also be no right of appellate review of the question.

A proper analysis of the questions presented requires that we first discern the true nature of the claim appellant was attempting to raise. In styling the appellation of the motion, appellant elected to set forth various types of relief he sought. He was requesting that the information be quashed and that the complaint and transcript be returned to the appropriate body, who would be empowered to overrule the district justice's finding of a prima facie case. The reason offered as his basis for this relief was the assertion that the Commonwealth had failed to prove a prima facie case at the preliminary hearing. Since the court's right to exercise jurisdiction over the person of the accused in a criminal case is dependent upon

[ 489 Pa. Page 585]

    the Commonwealth's ability to establish a prima facie case, see Commonwealth v. Prado, 481 Pa. 485, 393 A.2d 8, 10 (1978) (citing cases), appellant was in fact asserting an unlawful detention. Thus, regardless of the designation used by appellant, the true nature of the motion was a request for habeas corpus relief. Our precedent establishes that we will not dismiss a request for habeas corpus relief solely on the basis that the pleading raising the claim was incorrectly labeled, where the purport of the motion is evident. Commonwealth v. Hetherington, 460 Pa. 17, 331 A.2d 205 (1975).

The great writ of habeas corpus ad subjiciendum was designed to test the legality of the restraints upon an accused's liberty. The Habeas Corpus Act of 1785*fn2 is entitled "[a]n Act for the better securing personal liberty, and preventing wrongful imprisonments." Its preamble states that "personal liberty is a principal blessing derived from free constitutions of government, and certain methods of proceeding should be prescribed, so that all wrongful restraints thereof may be easily and speedily redressed." The right to the protections afforded by this writ have long been part of our Commonwealth's history. Our state constitution has provided that "the privilege of the writ of habeas corpus shall not be suspended, unless when in case of rebellion or invasion the public safety may require it." Pa.Const., art. 1, § 14. Blackstone said of this remedy: "The great and efficacious writ, in all manner of illegal confinement, is that of habeas corpus ad subjiciendum ; directed to the person detaining another, and commanding him to produce the body of the prisoner, with the day and cause of his caption and detention." 3 W. Blackstone, Commentaries 131. In discussing the federal constitution's habeas corpus provision, see U.S.Const., Art. 1, § 9, the Supreme Court has stated:

We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, in

[ 489 Pa. Page 586]

Anglo-American jurisprudence * * * Received into our own law in the colonial period, given explicit recognition in the Federal Constitution, Art. I, § 9, cl. 2, incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, * * * habeas corpus was early confirmed by Chief Justice John Marshall to be a "great constitutional privilege." * * * Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. * * * History refutes the notion that until recently the writ was available only in a very narrow class of lawless imprisonments. For example, it is not true that at common law habeas corpus was exclusively designed as a remedy for executive detentions; it was early used by the great common-law courts to effect the release of persons detained by order of inferior courts. * * * Nor is it true that at common law habeas corpus was available only to inquire into jurisdiction, in a narrow sense, of the committing court. Fay v. Noia, 372 U.S. 391, 401-02, 83 S.Ct. 822, 827-830, 9 L.Ed.2d 837 (1963).

In addition to the deference this mode of procedure has traditionally enjoyed, it is also germane to consider the purpose of the preliminary hearing in the criminal trial process.

The primary reason for the 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. . . .

[ 489 Pa. Page 587]

The Commonwealth also offers as a basis for the refusal of the Common Pleas Court to consider the merits that any error at the preliminary hearing was cured by the filing of an information. This argument is premised upon the assumption that for these purposes there is no difference between the indictment process and the information process. The rationale for the rule that a defendant could not look behind an indictment to a prior irregularity during the preliminary stage, where the irregularity asserted was the insufficiency of the evidence presented at the preliminary hearing, was that theoretically the indictment provided an independent judicial judgment (as opposed to the judgment of a law enforcement agency) on the sufficiency of the evidence. Since the preliminary hearing was designed to provide the same protection, it was deemed that no harm was suffered even if the evidence was insufficient at the preliminary hearing, if the evidence before the grand jury was found to support a true bill. Commonwealth v. Weinstein, supra, 177 Pa. Super. at 2, 109 A.2d 235 (citing cases); see also Commonwealth v. Manni, 223 Pa. Super. 403, 405, 302 A.2d 374 (1973).

Whereas the former rule, at least in theory, may have had some legitimacy, it is obvious that the information procedure that has now been substituted for the indictment process cannot in any way be considered a second judicial determination of the quantum of the evidence available to require an accused to stand trial. We, therefore, also reject this argument as a basis for finding that the Court of Common Pleas could properly refuse to consider the merits of appellant's claim.*fn4

In considering whether or not appellant may immediately appeal the dismissal of his claim to habeas corpus

[ 489 Pa. Page 589]

    relief, it must be remembered that the rules of appealability are not reciprocal in this area. While the Commonwealth may appeal from an order discharging a defendant upon a writ of habeas corpus, Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); Doyle v. Commonwealth ex rel. Davis, 107 Pa. 20 (1884), it is equally well settled that the defendant may not immediately appeal from the denial of his pretrial application for habeas corpus relief. Commonwealth v. Myers, 457 Pa. 317, 322 A.2d 131 (1974); Commonwealth ex rel. Gordy v. Lyons, 434 Pa. 165, 252 A.2d 197 (1969); Commonwealth ex rel. Bittner v. Price, 428 Pa. 5, 235 A.2d 357 (1967); Commonwealth ex rel. Fisher v. Stitzel, 418 Pa. 356, 211 A.2d 457 (1965); Commonwealth ex rel. Tiller v. Dye, 177 Pa. Super. 388, 110 A.2d 748 (1955).

Although it has been deemed appropriate to permit immediate review by the court of common pleas of the finding of a prima facie case by the district magistrate, a balancing of the further disruption of the trial process against the harm to the accused weighs in favor of barring immediate appellate review unless "exceptional circumstances" are present. See Commonwealth ex rel. Riggins v. Superintendent of Phila. Prisons, 438 Pa. 160, 263 A.2d 754 (1970); Commonwealth ex rel. Boatwright v. Hendrick, 436 Pa. 336, 260 A.2d 763 (1969); Commonwealth v. Lindsley, 241 Pa. Super. 522, 524, 366 A.2d 310 (1976). Thus, under prior case law it is firmly established that the denial of a habeas corpus claim, based upon the insufficiency of the evidence presented to the issuing authority, without a showing of exceptional circumstances (which have not been argued here), will not provide a basis for immediate appellate review.

Moreover, we are satisfied that there is no compelling reason to depart from this rule. In the unlikely event, the district justice and the court of common pleas having the habeas corpus application, were both in error in their assessment of the Commonwealth's evidence against the accused, the trial would not proceed beyond the demurrer stage. If a legitimate question is raised as to the existence of a prima facie case, and the common pleas court has a reservation as

[ 489 Pa. Page 590]

    to the propriety of its ruling, that court has the alternative of certifying the question pursuant to 42 Pa.C.S.A. § 702(b).*fn5 If in fact it is determined at trial that the evidence of the Commonwealth is sufficient to be submitted to the jury, then any deficiency in the presentation before the district justice would have been harmless. Finally, if the deficiency at the preliminary hearing stage can be shown to have tainted the verdict, in that event the direct appeal would provide an adequate remedy.*fn6 Thus, after weighing the slight possibility that the accused might unnecessarily have been required to proceed with trial up to the demurrer stage against the very real delay problem that would be created if we were to provide immediate appellate review, our present rule is justified and compels us to decline any invitation to change it. Accordingly, the motion to quash the appeal is granted, and the cause is remanded for trial.

ROBERTS, Justice, concurring.

[ 489 Pa. Page 591]

*fn* This case was reassigned to the writer on November 9, 1979.

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