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COMMONWEALTH PENNSYLVANIA v. MONTINEZ BERNHARDT (11/21/86)

filed: November 21, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
MONTINEZ BERNHARDT, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ANTHONY OWENS, APPELLANT



Appeal from the Order entered September 10, 1984, Court of Common Pleas, Philadelphia County, Criminal Division at Miscellaneous Nos. 84-080021 & 84-07-2441. Appeal from the Order entered April 26, 1985, Court of Common Pleas, Philadelphia County, Criminal Division at No. MC #85-03-1896.

COUNSEL

Leonard N. Sosnov, Assistant Public Defender, Philadelphia, for appellants.

Leonard Dentchman, Assistant District Attorney, Philadelphia, for Com., appellee.

Wieand, Beck and Johnson, JJ.

Author: Johnson

[ 359 Pa. Super. Page 415]

These consolidated appeals are from separate orders denying Appellants' petitions for a writ of habeas corpus. These appeals present for our review the question of whether a criminal defendant is entitled to a writ of habeas

[ 359 Pa. Super. Page 416]

    corpus where he is subject to a lengthy incarceration prior to his preliminary hearing without cause shown.

On July 27, 1984, Appellant Bernhardt was arrested without a warrant by Philadelphia police and charged with robbery and related offenses. Following a preliminary arraignment, bail was set at $4,000.00. Bernhardt's preliminary hearing was scheduled for August 2, 1984. When the complaining witness failed to appear, the Commonwealth requested and was granted a continuance. The preliminary hearing was continued until December 19, 1984. Bernhardt's bail was also reduced to $3,000.00. Subsequently on August 22, 1984, appellant Bernhardt filed a petition for a writ of habeas corpus, wherein he requested to be discharged from custody pending his preliminary hearing. Following a hearing, the trial court denied the petition for writ of habeas corpus on September 10, 1984. A subsequent petition to reduce bail was denied by the court on October 1, 1984. On October 4, 1984, Bernhardt filed a timely appeal to this court from the order denying his petition for habeas relief. Appellant's motion for release pending a disposition of his appeal was denied by this court per curiam on October 10, 1984. Later on October 12, 1984 Bernhardt was released on bail. Thereafter on December 19, 1984, when the complainant failed to appear for the preliminary hearing, the trial court granted the Commonwealth's motion to withdraw the prosecution without prejudice.

Appellant Owens was arrested on March 20, 1985 and charged inter alia, with burglary and receiving stolen property. Bail was set at $25,000.00 and Owens' preliminary hearing was scheduled for March 27, 1985. On that date, the Commonwealth requested and was granted a continuance for further preparation. The preliminary hearing was rescheduled for May 7, 1985. The record indicates that on April 1, 1985 a petition for reduction of bail/writ of habeas corpus was filed. A review of the record indicates that the document filed on April 1, 1985 was captioned petition for reduction of bail, with the language "writ of

[ 359 Pa. Super. Page 417]

    habeas corpus" handwritten in pencil underneath. On the back of the petition is a stamp signed by Judge David N. Savitt indicating that the petition for bail was denied on April 8, 1985. Further review of the notes of testimony show that a hearing was held on the petition for writ of habeas corpus, N.T., 4/26/85, after which Judge Savitt denied appellant habeas relief. Following a hearing on April 26, 1985, Judge Savitt orally denied appellant Owens' petition for a writ of habeas corpus. On April 30, 1985, this appeal followed. Subsequently on May 7, 1985, Owens' preliminary hearing was held and appellant Owens was bound over for trial.

Before addressing the merits of this appeal we must first determine whether the Superior ...


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