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.
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 A second complaint charging the same crime was voluntarily withdrawn by the District Attorney.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
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 ...