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COMMONWEALTH PENNSYLVANIA v. KEVIN MICHAEL DONAHUE (01/14/86)

submitted: January 14, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
KEVIN MICHAEL DONAHUE, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. SUSAN MARIAN KITCHENER, APPELLANT



Appeal from the Order of the Court of Common Pleas of Monroe County, Criminal, at No. 39 Miscellaneous 1985; C85-85; C86-85, 40 Miscellaneous 1985.

COUNSEL

D. Webster Keogh, Philadelphia, for appellants.

James F. Marsh, District Attorney, Stroudsburg, for Commonwealth, appellee.

Rowley, Montemuro and Kelly, JJ. Kelly, J., files a concurring opinion.

Author: Montemuro

[ 357 Pa. Super. Page 504]

This is an appeal from an Order denying habeas corpus relief. Appellants were arrested for drug related offenses on March 24, 1985, based on information received by police through electronic surveillance.*fn1 A preliminary hearing was scheduled for April 1, 1985. At the request of the district attorney, and over the objections of counsel, the hearing was continued until April 17. On April 16, the hearing was continued a second time, until April 29, again at the instigation of the prosecutor and opposed by the defense. Appellants' habeas corpus petitions, were filed April 22. The trial court issued rules to be returnable May 1, and stayed further proceedings. The petitions were denied on May 10, and this appeal followed.

We first note that this case presents a jurisdictional question which although not raised by the parties we are empowered, if not compelled, to address sua sponte. Parker v. MacDonald, 344 Pa. Super. 552, 496 A.2d 1244 (1985).

[ 357 Pa. Super. Page 505]

It is a principle of some antiquity that, in general, an order denying a pre-trial petition for habeas corpus relief is interlocutory, and therefore not immediately appealable barring the existence of "exceptional circumstances." Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043 (1980); Commonwealth v. Schroeck, 273 Pa. Super. 386, 417 A.2d 702 (1980). This is particularly true in cases where the petition is grounded on the claim that insufficient evidence was produced at the preliminary hearing to make out a prima facie case against the defendant. Id.

Herein, however, the point of the petition was a demonstration that, prior to appellants' internment, the strength of the Commonwealth's case had not even been preliminarily tested, contrary to principles of both procedural and substantive law. We find that this set of circumstances is sufficiently anomalous, and therefore extraordinary, to warrant our intervention, since it presents a set of facts "'requiring the safeguarding of basic human rights.'" Commonwealth v. Rucco, 229 Pa. Super. 247, 250, 324 A.2d 388, 389 (1974) (citation omitted). In so finding we are mindful of the "vital purposes of [habeas corpus], which are to obtain relief from illegal confinement, to liberate those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody." 39 Am.Jur.2d Habeas Corpus ยง 2 (1968). It is in fact the principal function of the preliminary hearing to eliminate unlawful detention, Commonwealth v. Harvin, 346 Pa. Super. 575, 500 A.2d 98 (1985); Commonwealth v. Wansley, 248 Pa. Super. 234, 375 A.2d 73 (1977), thus obviating the need for pre-trial habeas corpus relief. Here the opposite effect has been achieved.*fn2

Specifically appellants argue that discharge through habeas proceedings is the proper remedy for violation of Pa.R.Crim.P. 140(d)(1), and 142.

Rule 140(d)(1) reads in pertinent part ...


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