No. 2023 October, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division, at Nos. 766-768 October Term, 1978
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Spaeth, J., files concurring opinion.
[ 301 Pa. Super. Page 455]
On January 24, 1979, appellant, Lisa Poindexter, was found guilty, by a jury, of arson, criminal conspiracy and burglary. Post-verdict motions were subsequently filed and denied. Poindexter was sentenced to serve a term of imprisonment of five to ten years. This appeal followed.
[ 301 Pa. Super. Page 456]
Poindexter raises four questions on appeal. First, she asserts that the trial court erred in refusing to discharge her under Pennsylvania Rule of Criminal Procedure 141(d). Second, that the trial court erred in not discharging her under Pennsylvania Rule of Criminal Procedure 1100. Third, that the Commonwealth's attorney engaged in prosecutorial misconduct. Fourth, that the trial court's instructions to the jury defining reasonable doubt were improper. We are not persuaded that any such error was committed by the trial court. Accordingly, we affirm.
On February 22, 1978, Poindexter was arrested and charged with attempted murder, arson, risking a catastrophe, recklessly endangering another person, burglary, criminal conspiracy, and criminal mischief. These charges were subsequently dropped after the trial court held that the Commonwealth failed to establish a prima facie case against Poindexter. On August 8, 1978, the Commonwealth obtained a warrant to rearrest Poindexter on the same charges. She was rearrested on September 20, 1978. After a preliminary hearing, the trial court ordered Poindexter held for trial.
The record discloses that on February 21 and 22, 1978, Poindexter attended the trial of Gregory Gainor. Gainor was convicted. When the verdict was announced, Poindexter became hysterical and had to be subdued by sheriff's deputies. At Gainor's trial, one of the Commonwealth's witnesses was Emma Reeves. On the evening of February 22, 1978, when Ms. Reeves returned home she discovered that a fire had been set in her apartment. Witnesses placed Poindexter near Reeves's apartment building near the time of the fire. An assistant fire marshall testified that the fire was of an incendiary origin.
Poindexter moved that the charges brought against her be dismissed under Pa.R.Crim.P. 141(d). She contends that the trial court improperly denied her motion. Specifically, she asserts she should have been discharged because costs were not paid after the charges brought in the initial arrest were dropped and she was discharged. Rule 141(d) was applied to
[ 301 Pa. Super. Page 457]
a case factually very similar to this one in Commonwealth v. Cartagena, 482 Pa. 6, 15-16, 393 A.2d 350, 355 (1978), wherein our Supreme Court said:
Appellant, however, has omitted the two sentences preceding the above-quoted portion, which state:
"If a prima facie case of the defendant's guilt is not established at the preliminary hearing, and no application for continuance, supported by reasonable grounds, is made by an interested person, and no reason for a continuance otherwise appears, 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." Pa.R.Crim.P. 141(3). (Emphasis added).
In the instant case, the first prosecution was dismissed because of the failure to establish a prima facie case and not because of the lack of probable cause to institute the criminal proceedings. Appellant's argument is thus meritless.
Accordingly, the initial prosecution, herein, was dropped because of the failure of the Commonwealth to establish a prima facie case and not because of a lack of a probable cause. Therefore, Poindexter's argument is meritless. See also: Commonwealth v. Cobbs, 288 Pa. Super. 155, 431 A.2d ...