Appeal from the Order entered April 29, 1986, in the Court of Common Pleas, Montgomery County, Civil, Misc. No. 175, January, 1986.
George F. Schoener, Jr., Philadelphia, for appellant.
Mary M. Killinger, Assistant District Attorney, Norristown, for Com., appellee.
McEwen, Del Sole and Montemuro, JJ.
[ 361 Pa. Super. Page 62]
An order granting a Commonwealth petition for temporary assignment of a District Justice, pursuant to Pa.R.Crim.P. 23(d) is being questioned in this appeal.
From the record we can discern the following facts. On March 27, 1986, Appellant was charged with the murder of his wife. A preliminary hearing was held before District Justice M. William Peterson on April 8, 1986. Following the presentation of testimony and argument District Justice Peterson held that the Commonwealth failed to establish a prima facie case and ruled that Appellant be discharged. The Commonwealth filed a Petition for Temporary Assignment of a District Justice on April 14, 1986. The Petition alleged that District Justice Peterson was "unable to comprehend the complex factual . . . and legal issues" presented at the preliminary hearing and that he "had a predisposition to dismiss the charges" which necessitated a temporary assignment of a different issuing authority to insure a fair and impartial proceeding. Notice of the Petition was given to Appellant and he responded with an Answer and Memorandum of Law. Thereafter, the court scheduled a "hearing" on the petition for April 25, 1986.
At the time for the appointed "hearing", there were no witnesses sworn, no testimony taken and no evidence introduced. The court did hear the arguments of counsel and did review the transcript of the preliminary hearing before granting the relief requested by the Commonwealth. In its Opinion the court gave the following reasons for its ruling:
Inasmuch as the Commonwealth has presented evidence establishing District Justice M. William Peterson's predisposition, his lack of understanding of the relevant law and his intent to recuse himself if reassigned to the case, the temporary appointment was properly granted to insure
[ 361 Pa. Super. Page 63]
fair and impartial proceedings and the efficient administration of justice.
Appellant filed the instant appeal alleging that there was no evidence presented to support the court's finding. We agree, and accordingly, reverse the order of court ...