No. 1764 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, at No. 287-79.
Arthur J. King, Assistant Public Defender, Norristown, for appellant.
David M. McGlaughlin, Assistant District Attorney, Norristown, for Commonwealth, appellee.
Price, Cavanaugh and Watkins, JJ.
[ 288 Pa. Super. Page 156]
This is an appeal from the judgment of sentence of the Court of Common Pleas of Montgomery County by the defendant-appellant, James Henry Cobbs, after conviction by a jury of assault by a life prisoner (Para. 2704, Pa.Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S.A. 2704); and from the denial of post-trial motions. He was sentenced to serve a concurrent life sentence.
[ 288 Pa. Super. Page 157]
The facts reviewed in the light most favorable to the Commonwealth established that the defendant, serving a life sentence in Graterford Prison, was involved in a fight with another inmate, Walter Brown. After guards intervened, and while Brown was restrained by a guard, Cobbs continued his attack and stabbed Brown in the forehead. He then dropped the knife and was taken into custody.
At a preliminary hearing that was held on December 27, 1978, the charges were dismissed. He was rearrested on January 5, 1979 on the same charges. A second preliminary hearing was held after which the defendant was held for trial.
His first complaint on appeal, is that the court erred in denying defendant's motion to quash the criminal transcript for failure to comply with Pa.Rules of Crim.Pro. 141(d).
The rule provides as follows:
"If a prima facie case of the defendant's guilt is not established at the preliminary hearing . . . the issuing authority shall discharge the defendant, and if he finds that the prosecution was brought without probable cause, the issuing authority shall order affiant to pay the cost of the prosecution. No further proceedings may be had before any issuing authority on the same cause until the affiant in the original proceeding has repaid the costs."
The rule does not apply in this case because the District Justice had not determined that the original prosecution "was brought without probable cause". The record indicates that the reason the charges were dismissed was due to the refusal of the victim to testify at the original hearing so that no costs were assessed as required by the rule. The Commonwealth was free to ...