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COMMONWEALTH PENNSYLVANIA v. GERALD COSTELLO A/K/A JERRY COSTELLO (07/09/82)

filed: July 9, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
GERALD COSTELLO A/K/A JERRY COSTELLO, APPELLANT



No. 2283 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas of Luzerne County, No. 1503 of 1979.

COUNSEL

John A. Bednarz, Wilkes-Barre, for appellant.

Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Hester, Rowley and Montgomery, JJ.

Author: Rowley

[ 301 Pa. Super. Page 539]

On May 1, 1979, a criminal complaint was filed charging appellant, Gerald Costello, with criminal conspiracy, theft and receiving stolen property in connection with the theft of sixty-seven cases of food from a railroad car. An arrest warrant was issued on June 8, 1979 but was not served. On July 12, 1979, an information charging appellant with criminal conspiracy and theft by unlawful taking was filed by the district attorney. The information was filed without a preliminary hearing having been held. No written motion or petition was presented by the district attorney certifying that proper cause existed to file the information without a preliminary hearing. However, on the back of the information there is a stamped order, signed by the court, reciting that appellant was a "fugitive from justice", that he could not be found after a diligent search "within the jurisdiction of [the] court", and granting leave to the district attorney to file the information without a preliminary hearing.

Appellant filed omnibus pre-trial motions, including a motion to quash the information on the ground that amended Pa.R.Cr.P. 231, which became effective July 1, 1979, no longer provides for a procedure to bypass a preliminary hearing on the government's claim that the accused is a fugitive from justice who cannot be found in the Commonwealth. Appellant's motions were denied, and on October 18, 1979, he was found guilty after a jury trial. Appellant's post-trial motions for arrest of judgment or a new trial were denied. Judgment of sentence was entered on July 10, 1980, and appellant appealed to this court.

Pennsylvania Rule of Criminal Procedure 231(a) reads as follows:

"Rule 231. Presentation of Information without Preliminary Hearing.

[ 301 Pa. Super. Page 540]

"(a) When the attorney for the Commonwealth certifies to the court of common pleas that a preliminary hearing cannot be held for a defendant because the statute of limitations will otherwise bar prosecution, an information is necessary in order to extradite the defendant, or a preliminary hearing cannot be held for other good cause, the court may grant leave to the attorney for the Commonwealth to file an information with the court without a preliminary hearing."

It is clear from the record that there was no statute of limitations problem in this case and that an information was not necessary to extradite appellant. Rather, the use of the bypass procedure was ...


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