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COMMONWEALTH PENNSYLVANIA v. HEIDI MALLOY. APPEAL PAULA-ARLEN VENDING MACHINE CO. (09/03/82)

filed: September 3, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
HEIDI MALLOY. APPEAL OF PAULA-ARLEN VENDING MACHINE CO., INC. (TWO CASES). COMMONWEALTH OF PENNSYLVANIA V. JAMES P. MICHENER, JR., APPELLEE



No. 1999 Philadelphia, 1980, No. 2002 Philadelphia, 1980, APPEAL FROM THE ORDER OF JULY 28, 1980 IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, CRIMINAL, NOS. 490 and 491 OF 1980.

COUNSEL

Gerald I. Roth, Allentown, for appellant.

William H. Platt, District Attorney, Allentown, for Commonwealth, appellee.

Paul A. McGinley, Allentown, for Malloy and Michener, appellees.

Spaeth, Rowley and Cirillo, JJ.

Author: Cirillo

[ 304 Pa. Super. Page 299]

This case raises the novel issue of whether the victim of an alleged crime has standing to appeal, without the consent of the district attorney, a judicial determination dismissing a complaint for the prosecution's failure to establish a prima facie case. For the reasons which follow, we conclude that a victim/complainant lacks the authority and power to appeal and, therefore, this appeal must be quashed.

On February 20, 1980, private criminal complaints were executed by David Rosen of the appellant corporation, Paula-Arlen Vending Machine Co. (hereinafter "appellant"), against James P. Michener and Heidi Malloy (hereinafter "defendants"). Each of the defendants was charged with theft by unlawful taking or disposition,*fn1 theft by deception*fn2 and criminal conspiracy.*fn3 The complaints alleged that the defendants, former employees of appellant, drew and endorsed numerous checks on appellant's account without authority, in an attempt to deprive the company of monies.

[ 304 Pa. Super. Page 300]

On March 10, 1980, the District Attorney of Lehigh County approved the complaints.*fn4

The District Attorney allowed the appellant's private counsel to represent the Commonwealth at the preliminary hearing held on April 17, 1980. After that hearing, District Justice Ralph Beck determined that a prima facie case had been established on all charges against both defendants. On June 4, 1980, informations were filed against the defendants on the charges alleged in the complaints.

Petitions for writs of habeas corpus were filed on behalf of both defendants, on June 5, 1980, in the Lehigh County Court of Common Pleas. The writs alleged a failure by the Commonwealth to establish a prima facie case at the preliminary hearing. Writs of habeas corpus ad subjiciendum were issued and a hearing was scheduled for June 30, 1980. The hearing was conducted by the Honorable Maxwell E. Davison, who reviewed the preliminary hearing transcript*fn5 and the memorandum of law submitted by counsel.*fn6 On July 28, 1980, the complaints against both defendants were dismissed because of the prosecution's failure to prove a prima facie case.

On August 20, 1980,*fn7 appellant privately filed notices of appeal from the order dismissing the complaints, because the district attorney refused to appeal or authorize appellant to do so on behalf of the Commonwealth. On October 29, 1980, the district attorney filed a motion to quash the appeals, challenging appellant's ...


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